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 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 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 In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the Net Asset Value and Adjusted Base Purchase Price and (ii) the 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 or Article VIII hereof, the Company Stockholders, by the approval of the Merger and 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 the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section 1.11(f) hereof, 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 Stockholder Agreement, and any related agreementsthe Management Participants, 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 by their execution of the RepresentativeManagement Participant Agreement, and shall each be deemed 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 have designated 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 eventtheir representative.
(b) All decisions and actions The Company Stockholders, by the Representativeapproval of the Merger and adoption of this Agreement, including any agreement between and the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section 1.11(f) hereof, shall each be deemed to have authorized the Representative and ▇▇▇▇▇▇▇▇ (i) to make all decisions relating to the determination of the Merger Consideration Net Asset Value and the determinationAdjusted Base Purchase Price, dispute (ii) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI or Article VIII hereof, (iii) after the Effective Time, to give and facilitating receive all notices required to be given under the disbursement Agreement, and (iv) to take any and all additional action as is contemplated or permitted by this Agreement or the Indemnification Escrow Agreement to be taken by or on behalf 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 sameEquity Holders.
(c) Each Securityholder 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 Net Asset Value and the determinationAdjusted Base Purchase Price, 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 Article VIII hereof or any other actions required or contemplated 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; .
(iid) Kardigan shall The Representative will have the right to act as the representative of the Equity Holders, and to act on behalf of the Equity Holders and to take any and all actions required or permitted to be required taken by the Representative under this Agreement, with respect to file and negotiate any claims or disputes related (including payment thereof) made pursuant to or in connection Section 6.1 and with respect to any actions to be taken by the Ancillary AgreementsRepresentative pursuant to the terms of the Escrow Agreement. All decisions and actions by the Representative, including without limitation any agreement between the Representative and the Buyer relating to the determination of the Merger Consideration Net Asset Value and the determinationAdjusted Base Purchase Price or the 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 or Article VIII hereof, 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 of the Equity Holders, and no Securityholder Equity Holder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Representative (or any of the directors, officers, agents, employees or Affiliates thereof) shall incur no liability to the Equity Holders with respect to any action taken or suffered by the Representative in reliance upon any notice, direction, instruction, consent, statement, or other document believed by the Representative to be genuinely and duly authorized, nor for any other action or inaction with respect to distributions of the Indemnification Escrow Shares, any defense or settlement of any claims, and the making of payments with respect thereto, nor with respect to voting or failing to vote the Indemnification Escrow Shares, except to the extent resulting from the Representative's own willful misconduct or gross negligence. The Representative may, in all questions arising under this Agreement, rely on the advice of counsel, and for anything done, omitted, or suffered in good faith by the Representative in reliance on such advice, shall not be liable to the Equity Holders.
(f) In the event that the Representative dies or becomes unable to perform his, her or its responsibilities as the Representative or resigns from such position, Trinity Ventures shall appoint a new Representative, and if within 30 days of such death, inability to perform his, her or its responsibilities or resignation of the Representative, Trinity Ventures fails to appoint a new Representative, the Equity Holders receiving an aggregate of greater than 50% of the Adjusted Merger Consideration 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.
(g) The Buyer and the Surviving Corporation shall be entitled to rely conclusively on a certificate from the Representative with respect to any action taken by the Representative, and no party shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon such a certificate from the Representative.
(h) The Company Stockholders, by the approval of the Merger and adoption of this Agreement, and the holders of Options or Warrants by executing amendments to such Options or Warrants, as applicable, pursuant to Section (a) hereof, shall each be deemed to (i) agree and authorize the Escrow Agent to withhold from the Indemnification Escrow Shares, if any, otherwise payable to the Equity Holders under the terms of the Indemnification Escrow Agreement a number of shares having a value (using a price of $12.50 per share) equal to the reasonable costs and expenses (including reasonable professional fees) incurred by, or reasonably anticipated by the Representative to be incurred by, the Representative in connection with the representation of the Equity Holders in any proceeding arising out of this Agreement (including all matters concerning claims for indemnification under Article VI or Article VIII of this Agreement) or the transactions or agreements related hereto (the "Representative Fees"); (ivii) agree and authorize the Representative to withhold Buyer Common Shares (valued at $12.50 per share) evidencing the Representative Fees from any shares otherwise issuable to the Equity Holders pursuant to Section 1.12 hereof (to the extent such fees are not withheld from the Escrow Shares); and (iii) agree to reimburse the Representative for the Representative Fees.
(i) The provisions of this Section 1.4 1.14 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 (v) by this Agreement. Remedies available at law for any breach of the provisions of this Section 1.4 1.14 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 1.14. The provisions of this Section 1.14 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 Equity Holder or the Equity Holders shall mean and include the successors to such Securityholder’s the Equity Holder'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 (Akamai Technologies Inc), Merger Agreement (Akamai Technologies Inc)
Representative. (a) By Each Stockholder hereby designates and appoints (and each permitted Transferee of each such Stockholder is hereby deemed to have so designated and appointed) Chairman Stockholder (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 its attorney-in-fact of each Securityholder, for all purposes in connection with this Agreement, and any related agreements, with full power in itsof substitution, his or her name and on its, his or her behalf to act according to serve as the terms representative of this Agreement and the Ancillary Agreements in the discretion of the Representative, and to do all things and such Stockholder to perform all actssuch acts as are required, authorized or contemplated by this Agreement to be performed by such Stockholder (including (1) amending the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement voting of the Milestone Payments Subject Shares in accordance with Sections 4(a) 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 Securityholders4(b)), 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 acknowledges that the Representative shall be conclusive authorized to take any action so required, authorized or contemplated by this Agreement. Each such Stockholder 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 Stockholder. Each such Stockholder hereby authorizes (and each such Permitted Transferee of such Stockholder 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 other parties hereto to disregard any notices or other action taken by such Stockholder pursuant to this Section 1.4 shall Agreement, except for notices and actions taken by the Representative. Oracle is and will be binding upon entitled to rely on any action so taken or any notice given by the executors, heirs, legal representatives Representative and successors of each Securityholder, is and will be entitled and authorized to give notices only to the Representative for any references in notice contemplated by this Agreement to a Securityholder shall mean and include the successors be given 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 Stockholder. A successor 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 chosen 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 provided that notice thereof is given by 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 hereinOracle.
(fb) Pursuant to Notwithstanding the generality of Section 2.2(c6(a), at each Stockholder hereby constitutes and appoints the ClosingRepresentative with full power of substitution, Kardigan shall deposit, on behalf as the proxy pursuant to the provisions of Section 212 of the SecurityholdersDelaware General Corporation Law and attorney of such Stockholder, the Expense Fund Amount to an account designated by and hereby authorizes and empowers the Representative to represent, vote and otherwise act (by voting at any meeting of the “Expense Fund”)Stockholders of the Company, which will be used for any expenses incurred by written consent in lieu thereof or otherwise) with respect to the RepresentativeSubject Shares owned or held by such Stockholder regarding the matters referred to in Sections 4(a) and 4(b) until the termination of this Agreement, to the same extent and with the same effect as such Stockholder might or could do under applicable law, rules and regulations. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign proxy granted pursuant to the Representative immediately preceding sentence is coupled with an interest and shall be irrevocable. Each Stockholder hereby revokes any ownership right that they may otherwise have had in and all previous proxies or powers of attorney granted with respect to 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, Subject Shares owned or held by such Stockholder regarding the Representative will deliver any remaining balance of the Expense Fund matters referred to Kardigan for further distribution to the Securityholders in accordance with Section 2.3(dSections 4(a) (the “Expense Fund Distribution”and 4(b). 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: Shareholder Agreement (Ozark Holding Inc.), Shareholder Agreement (Oracle Corp /De/)
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 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 In order to efficiently administer the adoption obligations specified in this Agreement and efficiently represent the interests of the MergerCompany Securityholders with respect to all matters arising under this Agreement or the Escrow Agreement, and by virtue of the execution approval of this Agreement and/or acceptance and the Acquisition (and no act of any such Company Securityholder), and the consummation of the Acquisition or participating in the Acquisition and receiving the benefits thereof, including any the right to receive the consideration payable pursuant to this Agreementin connection with the Acquisition, each of Company Securityholder appoints the Securityholders irrevocably nominate, constitute Representative as its exclusive agent for such Company Securityholder and appoint the Representative, as of such Company Securityholder’s true and lawful attorney-in-fact effective upon the Closing, as the true with full power and lawful agent authority in such Company Securityholder’s name and attorney in fact of each on such Company Securityholder, ’s behalf for all purposes in connection with this Agreement, Agreement and any related agreements, with full power in its, his or her name and on its, his or her behalf agreements ancillary hereto including to (A) act according to the terms of this Agreement and the Ancillary Agreements Escrow Agreement in the absolute discretion of the Representative, (B) represent such Company Securityholder and such Company Securityholder’s successors with respect to all matters arising under this Agreement and the Escrow Agreement, (C) receive all notices and service of process; and (D) in general 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 any agreements, certificates, receipts, instructions and other instructions, notices or instruments contemplated by, by or deemed advisable in connection withwith this Agreement, the Ancillary AgreementsEscrow Agreement or the Representative Engagement Agreement. Any Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Company 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 Disclosure Schedule. The Representative agrees to act as the representative, agent and attorney-in-fact of each Company Securityholder. Each Company Securityholders agrees, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), that all such actions taken by the Representative on behalf of under this Agreement, the Securityholders as provided hereunder Escrow Agreement, or the Representative Engagement Agreement shall be binding on all Securityholdersupon such Company Securityholder and such Company Securityholder’s successors as if expressly confirmed and ratified in writing by such Company Securityholder, and Shareholder all defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Representative Services LLC hereby accepts such appointment. This taken in good faith under this Agreement, the Escrow Agreement or the Representative Engagement Agreement are waived.
(b) The power of attorney and all authority hereby conferred is coupled with an interestunder this Section 2.5 and the powers, is immunities and rights to indemnification granted in consideration of to the mutual covenants and agreements made herein, Representative Group hereunder: (i) shall be irrevocable and shall not be terminated by any act of any one or more SecurityholdersCompany Securityholder, or by operation of applicable law, whether by such Company Securityholder’s death or disability or any other eventevent and (ii) shall survive the delivery of an assignment by any Company Securityholder of the whole or any fraction of his, her or its interest in the Escrow Amount. Without limiting the foregoing, the power of attorney shall be to ensure the performance of a special obligation and, accordingly, each Company Securityholder, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), renounces such Company Securityholder’s right to renounce this power of attorney unilaterally any time before the termination of all payment obligations under this Agreement.
(bc) All decisions The Representative agrees to be bound by all obligations of the Representative under this Agreement or the Escrow Agreement to which it is a party and shall take any and all actions which the Representative believes are necessary or appropriate under this Agreement, the Escrow Agreement, or the Representative Engagement Agreement (including entering into any amendment of same) for and on behalf of the Company Securityholders, including defending all indemnity claims pursuant to Article 9, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Buyer and its agents regarding indemnity claims, dealing with Buyer and the Company under this Agreement and the Escrow Agreement with respect to all matters arising hereunder or thereunder, taking any and all other actions of the Representative specified in or contemplated by this Agreement or the Escrow Agreement and engaging counsel and accountants in connection with the foregoing matters. Without limiting the generality of the foregoing, by virtue of the approval of this Agreement and the Acquisition (and no act of such Company Securityholder), each Company Securityholder grants the Representative full power and authority to interpret all the terms and provisions of this Agreement and the Escrow Agreement and to consent to any amendment hereof or thereof on behalf of such Company Securityholder and its successors. The Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party.
(d) Certain Company 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 Escrow Agreement (such Company 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 in such capacity (collectively, the “Representative Group”) shall incur any liability to the Company Securityholders of any kind with respect to any action or omission by the Representative in connection with 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 ’s services pursuant to this Agreement, shall be binding upon and any agreements ancillary hereto while acted in good faith, except for liability directly resulting from the Securityholders, and no Securityholder shall have the right to object, dissent, protest Representative’s willful misconduct 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 gross negligence. By virtue of the Representative as to the determination approval 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 the Acquisition and no other act of any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Representative shall Company Securityholder, each Company Securityholder (based on such Company Securityholder’s Pro Rata Share), severally and not be liable for any action or omission pursuant to the advice of counsel. The Securityholders jointly, by each Company Securityholder will indemnify, defend and hold harmless the Representative Group (in the case of the Advisory Group, in their capacity as such) 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 Company Securityholders the amount of such indemnified Representative Loss received by the Representative to the extent attributable to such fraud, bad faith, gross negligence or willful misconduct. Such Representative Losses may be recovered by the Representative Group from (i) first, the funds in the Representative Expense Fund and Fund, (ii) second, from any other funds that become payable distributions of the Escrow Fund to the Securityholders under this Agreement Company Shareholders or other post-closing payment at such time as such amounts would otherwise be distributable to the Company Securityholders, and (iii) directly from the Company Securityholders, as such Representative Losses are suffered or incurred; provided that the foregoing clauses (i), (ii) and (iii) do not prevent the Representative Group from seeking any remedies available to them at law or otherwise against the Company Securityholders; provided, further, that while in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Representative, the Representative may be paid from will reimburse the aforementioned sources Company Securityholders the amount of funds, this does not relieve such indemnified Representative Loss received by the Securityholders from their obligation Representative to promptly pay the extent attributable to such Representative Losses as they are suffered gross negligence or incurredwillful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. 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 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 the recourse against non-parties parties, otherwise applicable to, to the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative hereunderGroup by the Company Shareholders under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(e) The Representative may resign at any time upon 30 by giving thirty (30) days’ written noticenotice to Buyer and the Company Securityholders; In such event, the successor Representative shall be selected by the Company Securityholders holding at least a majority of Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing. If the Representative is unable to perform his, her or its obligations under this Agreement or, in the case of a Representative that is not a natural Person, becomes bankrupt, insolvent or ceases to exist, then the Company Securityholders holding at least a majority of the Company Ordinary Shares (on an as converted basis) as of immediately prior to the Closing shall appoint a successor Representative. Notwithstanding anything herein to the contrary, if (i) the Representative resigns or otherwise is unable to perform its obligations as such, and may (ii) no successor Representative is appointed pursuant to the foregoing within twenty (20) days, then, without any further action of or consent by any Person, the Advisory Group, shall be removed the Representative for any reason all purposes hereunder until replaced in accordance with the foregoing by the Company Securityholders. The immunities and rights to indemnification shall survive the resignation or no reason by approval from and by written consent of a majority in interest removal of the StockholdersRepresentative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(f) Buyer will have no liability to the Company Securityholders or otherwise arising out of the acts or omissions of Representative or any disputes with Representative. Buyer may rely entirely on its dealings with, and notices to and from, the Representative to satisfy any obligations it might have under this Agreement or the Escrow Agreement.
(g) After the Closing, Buyer shall afford the Representative and its accountants, counsel and other representatives, reasonable access during regular business hours and with reasonable prior notice to the Buyer, during the period from the date a Claim Notice is delivered until all claims under such Claim Notice are resolved to (i) books and records of the Company (other than privileged documents), and (ii) all Company personnel as reasonably identified by the Representative, in each case, to the extent reasonably related to such claims under the Claim Notice; provided, however, that (x) access to such books, records, documents and personnel will not unreasonably interfere with the normal operations of Buyer and its Subsidiaries or violate applicable Law or Contract, and will not otherwise prejudice the rights or privileges (including attorney-client privileges) of Buyer or its Subsidiaries (including the Company and its Subsidiaries) under this Agreement or any applicable Law, and (y) the reasonable out-of-pocket expenses of Buyer and its Subsidiaries incurred in no event shall connection therewith will be promptly reimbursed 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 Company Securityholders, the ).
(h) The Representative Expense Fund Amount to an account designated by the Representative (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Representative for any third party expenses incurred pursuant to this Agreement and the Related Agreements, or (ii) as otherwise determined by the RepresentativeAdvisory Group. The Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Expense Amount, and has no tax reporting or income distribution obligations. The Company 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 while acting in good faith 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 Representative Expense Fund to Kardigan the Paying Agent for further distribution to the Company Securityholders in accordance with Section 2.3(d) (their respective Pro Rata Shares. and the “Expense Fund Distribution”)agreements ancillary hereto. For tax purposes, the Representative Expense Fund will be treated as having been received and voluntarily set aside by the Company Securityholders at the time of Closing.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
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 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 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 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 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 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 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 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 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 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 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. (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 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 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 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 virtue of the approval of the Merger and the adoption of this Agreement by the Mergerrequisite holders of Company Stock in accordance with the Governing Documents, and without further action of any such holders, and by virtue of receiving the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Agreementhereunder, each of the Securityholders irrevocably nominate, constitute and appoint the Representative, Company Equity Holder shall be deemed to have approved Shareholder Representative Services LLC as of the Closing, Closing as the true Representative and lawful agent as the representative agent, proxy and attorney in attorney-in-fact of each Securityholder, for such Person for all purposes in connection with this Agreement and the agreements ancillary hereto, including full power and authority on such Person’s behalf (i) to consummate the Transactions, (ii) to pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to effect the disbursement of any funds contemplated to be paid hereunder to such Person, (iv) to execute and deliver any related agreementscertificates representing the Company Stock to Parent and execution of such further instruments as Parent shall reasonably request, with full power (v) to execute and deliver on behalf of such Person any amendment or waiver hereto, (vi) to take all other actions to be taken by or on behalf of such Person in itsconnection herewith, his or her name (vii) to negotiate, settle, compromise and on its, his or her behalf otherwise handle any claims made against the Adjustment Escrow Amount pursuant to act according to the terms of this Agreement and the Ancillary Agreements in the discretion of the Representative, and (viii) to do each and every act and exercise any and 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 byrights which such Person is, or deemed advisable in connection withPersons collectively are, permitted or required to do or exercise under this Agreement. Parent (and after the Ancillary Agreements. Any and Closing any Acquired Company) shall have the right to rely upon all such actions taken or omitted to be 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, all of which action or omission shall be legally binding upon on the Securityholders, and no Securityholder shall have Company Stockholders. The Representative may resign at any time. The Person serving as the right to object, dissent, protest Representative may be removed or otherwise contest the same.replaced from time to
(cb) Each Securityholder agrees that: (i) Kardigan and its Affiliates of the Company Stockholders 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 bound 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 severable11.13 (whether by their vote, are irrevocable and coupled with an interest and shall be enforceable notwithstanding execution of a Letter of Transmittal or receipt of any rights of the Initial Per-Share Consideration or remedies that the Per-Share Portion of any Securityholder may have in connection with the transactions contemplated hereby; and Post-Closing Release (vif any)) 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 as if they were 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 otherwiseParty hereto.
(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 or omission pursuant to the advice of counsel. The Securityholders will Company Equity Holders shall severally but not jointly (in accordance with their Pro Rata Portion) indemnify, defend and hold harmless 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 if any such Representative Loss is finally adjudicated to have been caused by the bad faithgross negligence, fraud, gross negligence or willful misconduct or bad faith of the Representative, the Representative will reimburse the Securityholders Company Equity Holders the amount of such indemnified Representative Loss to the extent attributable to such fraudgross negligence, willful misconduct or bad faith, gross negligence or willful misconduct. 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 at such time as such amounts Company Equity Holders hereunder when they would otherwise be distributable to the SecurityholdersCompany Equity Holders; provided, that while the Representative may be paid from the aforementioned sources of funds, this does not relieve the Securityholders Company Equity Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. The Representative may, upon receiving notice of a matter reasonably likely to give rise to a Representative Loss (as determined in good faith by the Representative), withhold from any Representative Expense Fund distribution an amount as may be reasonably expected to cover such Representative Loss until such matter is resolved. In no event will the Representative be required to advance its own funds on behalf of the Securityholders Company Equity Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations elsewhere in this Agreement on liability or the Company Equity Holders’ liability, indemnification obligations ofobligations, or provisions limiting the recourse against non-parties otherwise applicable to, the Securityholders set forth elsewhere in this Agreement are do not intended to be applicable apply 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.
(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 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 Parent shall deposit, on behalf of the Securityholders, the Expense Fund Amount have delivered to an account designated by the Representative an amount equal to $250,000 (the “Representative Expense Fund”), which will be used for any expenses incurred by the RepresentativeRepresentative in fulfilling its obligations hereunder. The Securityholders Company Equity 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 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 For tax purposes, the Representative Expense Fund will be treated as practicable following having been received and voluntarily set aside by the Company Equity Holders at the time of Closing. Following the completion of the Representative’s responsibilities, the Representative will deliver any remaining balance of the Representative Expense Fund to Kardigan the Paying Agent for further distribution to the Securityholders Company Equity Holders.
(e) Notwithstanding anything in accordance with Section 2.3(d) (this Agreement to the “Expense Fund Distribution”). For tax purposescontrary, the Expense Fund will be treated as having been received Representative shall not settle, waive or compromise any claim or right in a manner that disproportionately and voluntarily set aside by adversely affects an individual Company Equity Holder without the Securityholders at the time prior written consent of Closingsuch Company Equity Holder.
Appears in 1 contract
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 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 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 In addition to the adoption of other rights and authority granted to the Merger, and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to Representative elsewhere in this Agreement, each of the Securityholders Surge Equityholders hereby to the fullest extent permitted by applicable Law, irrevocably nominateconstitutes and appoints the Representative as its true and lawful proxy, constitute attorney, agent and appoint representative to act (provided, however, that the Representative shall have no obligation to the Surge Equityholders to act other than as expressly provided herein), from and after the date hereof and to do any and all lawful things and execute and deliver any and all documents, for, in the name of and on behalf of such Surge Equityholder, and in such Surge Equityholder’s name, place and stead, that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof, as contemplated by this Agreement; (iii) receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) giving or agreeing to, on behalf of all or any of the Surge Equityholders, any and all consents, waivers, amendments or modifications deemed by the Representative, as in his sole and absolute discretion, 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; (vi) amending this Agreement or any of the Closinginstruments to be delivered to Motor or ParentCo pursuant to this Agreement; (vii) (A) disputing or refraining from disputing, on behalf of each Surge Equityholder relative to any Surge Merger Consideration to be received by such Surge Equityholder under this Agreement or any agreements contemplated hereby, any claim made by Motor or ParentCo under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each such Surge Equityholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (C) executing, on behalf of each such Surge Equityholder, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) voting the Surge Equityholders’ shares of ParentCo Common Stock that are held in the Escrow Account at any meeting of ParentCo’s shareholders, provided that the Representative shall, without the prior written consent of ParentCo, vote such shares of ParentCo Common stock in the same proportion as the true votes cast by all other shares voting on each particular matter at such meeting of ParentCo’s shareholders, and lawful agent an irrevocable proxy with respect thereto is hereby granted, and attorney in fact (ix) engaging attorneys, accountants, agents or consultants on behalf of each Securityholder, for all purposes the Surge Equityholders in connection with this AgreementAgreement or any other agreement contemplated hereby and paying any fees related thereto. Any such actions taken, exercises of rights, power or authority, and any related agreements, with full power in its, his decision 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 determination made by the Representative on behalf of consistent herewith, shall to the Securityholders as provided hereunder shall fullest extent permitted by applicable Law, be absolutely and irrevocably binding on all Securityholderseach Surge Equityholder as if such Surge Equityholder personally had taken such action, and Shareholder Representative Services LLC hereby accepts exercised such appointment. This rights, power of attorney and all or authority hereby conferred is coupled with an interest, is granted or made such decision or determination 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 Securityholderssuch Surge Equityholder’s individual capacity, and no Securityholder Surge Equityholder shall have the right to object, dissent, protest or otherwise contest the same.
(cb) Each Securityholder agrees that: (i) Kardigan and its Affiliates Notwithstanding Section 4.20(a), in the event that the Representative is of the opinion that he requires further authorization or advice from the Surge Equityholders on any matters concerning this Agreement, the Representative shall be able entitled to rely conclusively seek such further authorization or advice from the Surge Equityholders prior to acting on their behalf. In such event, each Surge Equityholder shall vote in accordance with the instructions pro rata portion of the Surge Merger Consideration payable or paid to such Surge Unitholders in accordance with this Agreement and decisions the authorization of Persons entitled to receive at least a majority of the Surge Merger Consideration shall, to the fullest extent permitted by applicable Law, be binding on all of the Surge Equityholders and shall constitute the authorization of the Surge Equityholders. The appointment of the Representative as each Surge Equityholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such Surge Equityholder with regard to the determination facilitation 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 Transactions. 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 irrevocable and is coupled with an interest and shall, to the fullest extent permitted by applicable Law, be irrevocable by each Surge Equityholder in any manner or for any reason. The authority granted to the Representative by this Section 4.20 shall survive and shall not be affected by the death, illness, dissolution, disability, bankruptcy, incapacity or other inability to act of any Surge Equityholder pursuant to any applicable Law. ▇▇▇▇ ▇▇▇▇▇▇ hereby accepts his appointment as the initial Representative.
(c) The Representative may resign from his position as Representative at any time by written notice delivered to ParentCo and the Surge Equityholders. If there is a vacancy at any time in the position of the Representative for any reason, such vacancy shall be enforceable notwithstanding any rights or remedies that any Securityholder may have filled by a majority vote in connection accordance with the transactions contemplated hereby; and (v) the provisions of this method set forth in 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 otherwise4.20(b).
(d) The All acts of the Representative will incur no hereunder in his capacity as such shall, to the fullest extent permitted by applicable Law, be deemed to be acts on behalf of the Surge Equityholders and not of the Representative individually. Other than as a result of willful misconduct by the Representative, the Representative shall not have any liability in connection with its services for any amount owed to Motor or ParentCo pursuant to this Agreement and any related agreements except to the fullest extent resulting permitted by applicable Law. Other than as a result of willful misconduct by the Representative, the Representative shall not be liable to Surge, Motor, ParentCo or the Merger Subs, in his capacity as the Representative, for any liability of a Surge Equityholder or otherwise, or for anything that he may do or refrain from its gross negligence doing in connection with this Agreement to the fullest extent permitted by applicable Law. To the fullest extent permitted by applicable Law, the Representative shall not be liable to the Surge Equityholders, in his capacity as the Representative, for any liability of a Surge Equityholder or otherwise, or for any error of judgment, or any act done or step taken or omitted by him in good faith, or for any mistake in fact or Law, or for anything that he may do or refrain from doing in connection with this Agreement except in the case of the Representative’s willful misconduct. The Representative shall not be liable for any action or omission pursuant to may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or his duties hereunder, and he shall, to the fullest extent permitted by applicable Law, incur no liability in his capacity as the Representative to Motor, ParentCo either Merger Sub, Surge or the Surge Equityholders and be fully protected with respect to any action taken, omitted or suffered by him in good faith in accordance with the advice of such counsel. The Securityholders will indemnifyParties acknowledge and agree the Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Surge Equityholder, defend and the Parties acknowledge and agree that the Representative’s obligations under this Section 4.20 are solely as a representative of the Surge Equityholders and that the Representative shall, to the fullest extent permitted by applicable Law, have no personal responsibility or liability for any expenses, costs or other liabilities incurred by him in such capacity and the Surge Unitholders (severally, but not jointly, in accordance with the pro rata portion of the Surge Merger Consideration payable or paid to such Surge Unitholders in accordance with this Agreement), shall indemnify and hold harmless the Representative from and against any and harmless in respect of all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, feessuch expenses, costs and expenses or other liabilities (absent the Representative’s willful misconduct), including the reasonable fees and expenses of any legal 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 retained by the Representative from (i) it being understood by the funds in Parties that the Representative shall be permitted to set off against the Representative Expense Fund and (ii) any other funds that become payable to the Securityholders under this Agreement at in respect of all 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 Agreementamounts).
(e) The Representative may resign at shall not be entitled to any time upon 30 days’ written noticefee, and may be removed commission or other compensation for any reason or no reason by approval from and by written consent the performance of a majority in interest of the Stockholders; providedhis services hereunder, 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, ▇▇▇▇▇▇▇▇ but shall be entitled to rely on the decisions and actions payment from Surge of all his expenses reasonably incurred as the prior Representative as described herein.
(f) Pursuant to Section 2.2(c)Representative. In connection with the foregoing, at or prior to the Closing, Kardigan Surge shall deposit, on behalf of transfer $175,000 (the Securityholders, the “Representative Expense Fund Amount Fund”) to an account designated controlled by the Representative, to be used by the Representative solely to pay expenses incurred by him in his capacity as the Representative. Each Surge Equityholder shall pay to the Representative, on demand, such Surge Equityholder’s share (on a pro rata basis, based on the “Expense Fund”), which will be used for any pro rata portion of the Surge Merger Consideration paid to each Surge Equityholder in accordance with this Agreement) of all expenses incurred by the Representative. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to Representative in excess of the Representative any ownership right that they may otherwise have had in any such interest or earningsExpense Fund. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in Upon the event of bankruptcy. As soon as practicable following the completion release of the Representative’s responsibilitiesEscrow Account, the Representative will deliver any shall distribute the remaining balance unused portion of the Representative Expense Fund Fund, if any, to Kardigan for further distribution Surviving Surge, by wire transfer of immediately available funds to the Securityholders account(s) designated 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 writing by the Securityholders at the time of ClosingSurviving Surge.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Representative. (a) By Each Stockholder irrevocably appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇ (the adoption “Representative”) with power of the Mergerdesignation 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 by virtue in the name of, such Stockholder with the full power, without the consent of such Stockholder, to exercise as the execution Representative in its sole discretion deems appropriate, the powers which such Stockholder could exercise under the provisions of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant or the Ancillary Agreements 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 AgreementAgreement and the Ancillary Agreements, which shall include the power and authority to amend, modify, waive or provide consent with respect to any provision of this Agreement or any Ancillary 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 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 Stockholder is an Indemnitor, the Ancillary Agreements. Any and all such actions taken by the Representative shall act on behalf of all Stockholder Indemnitors. The Purchaser and the Securityholders Purchaser Indemnitees, if applicable, will be entitled to rely exclusively upon any notices and other acts of the Representative as provided hereunder shall be being legally binding on all Securityholders, acts of each Stockholder individually and Shareholder Representative Services LLC hereby accepts such appointmentthe Stockholders collectively. This The appointment and power of attorney granted by each Stockholder 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 Stockholder or the occurrence of any other eventevent or events.
(b) All decisions Each Stockholder acknowledges and actions by the Representative, including any agreement between agrees that the Representative and ▇▇▇▇▇▇▇▇ relating will 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, shall be binding upon the Securityholders, and no Securityholder shall have the right to object, dissent, protest Stockholders for any act done 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 omitted hereunder as the Representative as to while acting in good faith and in the determination exercise 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 Stockholders 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 Stockholders will reimburse the Representative for their 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 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 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 ClosingEscrow Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (InfuSystem Holdings, Inc)
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 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. The Stockholder is hereby appointed by the Company (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 hereby accepts such appointment) as the representative of the Securityholders irrevocably nominaterecipients of the Merger Consideration (the “Representative”) to (i) receive that portion of the Merger Consideration set forth in Section 1.5(a) herein on behalf of the holders of the Company Common Stock, constitute and appoint (ii) take any and all actions and make any decisions required or permitted to be taken by such recipients under this Agreement or the Escrow Agreement. Execution of the Letter of Transmittal and acceptance by a holder of Company Certificates of the Merger Consideration to which such holder is entitled shall be deemed acceptance by such holder of the appointment of the Representative to act in such holder’s behalf. Should the Representative resign or be unable to serve, a new Representative will be selected jointly by a vote of the recipients who, at Closing, received a majority of the shares of Parent Common Stock in the Merger, whose appointment shall be effective upon execution by such successor of a joinder agreement providing for such successor to become a party to the Escrow Agreement and this Agreement as the Representative, as of the Closing, as the true and lawful agent and attorney in fact of each Securityholder, which case such successor shall 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 be the discretion of Representative (and 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 prior acts taken by the succeeded Representative on behalf shall remain valid for purposes of this Agreement and the Escrow Agreement). If such recipients are unable to appoint a Person to serve in the capacity of Representative within 30 days of the Securityholders as provided hereunder shall be binding on all Securityholdersdate that the former Representative resigned or became unable to serve, 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 a new Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause selected by majority vote of action against those Persons on Parent’s board of directors who served on the Representative; (iv) board of directors of 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 Company immediately prior to the extent resulting from its gross negligence or willful misconductEffective Time. The Representative shall not be liable to recipients of the Merger Consideration for any action liability, loss, damage, penalty, fine, cost or omission pursuant to the advice of counsel. The Securityholders will indemnify, defend and hold harmless expense incurred without gross negligence or willful misconduct by the Representative from while acting in good faith 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 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 duties hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). From and after the Effective Time, a decision, act, consent or instruction of the Representative Loss is finally adjudicated shall be final, binding and conclusive and not subject to have been caused challenge by the bad faithany recipient. Parent and Surviving Corp are hereby relieved from any liability to any person for any acts done by Representative and any acts done by Parent or Surviving Corp in accordance with any such decision, fraudact, gross negligence consent or willful misconduct instruction of the Representative. Parent, the Representative will reimburse the Securityholders the amount Surviving Corp 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 upon, and shall be fully protected in relying upon, the decisions power and actions authority of the prior Representative as described hereinwithout independent investigation.
(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: Agreement and Plan of Reorganization (Trio Merger 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 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 WWG 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 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 WWG 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 and WWG 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 WWG hereby agree that the Representative (shall not have any liability to the “Expense Fund”), which will be used Company or any Subsidiary 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 WWG 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 WWG, and shall be final, binding and conclusive upon each Principal and WWG, 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 WWG and voluntarily set aside by the Securityholders at the time of Closingeach and every Principal.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (MDC Partners 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. (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 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 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 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 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 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 Each Shareholder irrevocably appoints ▇▇▇ ▇▇▇▇ (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 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 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. (a) By the adoption Each THL Entities 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 nominateAnthony J. DiNovi, constitute Scott Sperling and appoint the RepresentativeKent Weldon, 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 ▇▇▇▇attorney-in-▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇ ▇▇we▇ ▇▇ ▇▇▇▇▇▇▇▇▇ion f▇▇ ▇▇▇▇ ▇▇ them (the "THL Entities' 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 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 notice or other action taken by such person pursuant to this 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' Represen- tative 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 date indicated 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 Entities 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 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 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 hereby designates and appoints (and each Permit▇▇▇ ▇▇▇n▇▇▇▇▇e of each such consent Merrill Lynch Entities is hereby deemed to have so designated and appo▇▇▇▇▇) K▇▇▇▇▇ Inc., as his attorney-in-fact with full power of substitution for each of them (the "Merrill Lynch Entities Representative"), to serve as the representativ▇ ▇▇ ▇▇c▇ ▇▇▇h 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 date Merrill Lynch Entities Representative shall be the only person authori▇▇▇ ▇▇ t▇▇▇ ▇ny action so required, authorized or contem plated 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 is received or other action taken by such person pursuant to this Agreement except for the Merrill Lynch Entities Representative. The other parties hereto are an▇ ▇▇▇▇ b▇ ▇▇▇itled to rely on any action so taken or any notice given by the Merrill Lynch Entities Representative and are and will be entitled and ▇▇▇▇▇▇i▇▇; provided, that until ▇ ▇o give notices only to the Merrill Lynch Entities Representative for any notice contemplated by t▇▇▇ ▇▇▇e▇▇▇▇▇ to be given to any such notice is received, ▇person. A successor to the Merrill Lynch Entities Representative may be chosen by a majority in i▇▇▇▇▇▇▇ ▇▇ ▇▇e Merrill Lynch Entities' Shareholders, provided that notice thereof is ▇▇▇▇▇ ▇y ▇▇▇ new Merrill Lynch Entities Representative to the Company and to each other ▇▇▇▇▇▇l ▇▇▇▇h Entity Shareholder.
(d) Each Management Shareholde▇ ▇▇▇▇▇y ▇▇▇▇gnates 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 attorney-in-fact with full power of substituti▇▇ ▇▇▇ ▇▇▇▇ ▇▇ them (the "Management Representa- tive"), 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 (Fisher Scientific International Inc)
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 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) 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 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 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 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 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. 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. (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 Seller, each Unitholder and, upon execution and delivery to Purchaser and Parent of the Merger, Acknowledgment and by virtue of the execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable pursuant to this Joinder 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 Seller Investor Party 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 P▇▇▇▇▇ ▇▇▇▇ 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 as its representative and its Affiliates shall be able to rely conclusively on the instructions true and decisions lawful attorney-in-fact and agent, with full powers of the Representative as to the determination of the Merger Consideration substitution and the determinationresubstitution, dispute in its name, place 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 Agreementsstead, 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 lossescapacities, 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 Escrow Agreement, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or could do in person. Without limiting the foregoing, Seller, each case Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to act as the attorney-in-fact and agent and on behalf of each of them for the purposes of: (i) supervising the Closing; (ii) taking any and all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any consent, waiver or approval on behalf of each of them under this Agreement and the Escrow Agreement. As the representative under this Agreement and the Escrow Agreement, Representative Loss is suffered or incurred; providedshall act as the agent for Seller, that all Unitholders and all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, fraud, gross negligence or willful misconduct receipt of notice of the appointment of a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by Representative in connection with this Agreement in writing and signed by Representative.
(b) Neither Representative nor any agent employed by Representative shall be liable to Seller, any Unitholder or any other Seller Investor Party relating to the Representative will reimburse the Securityholders the amount performance of such indemnified Representative Loss Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent attributable to such it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative constituted willful misconduct or fraud, bad faith, gross negligence or willful misconduct. Representative Losses may shall be recovered severally (but not jointly) indemnified and held harmless by the Unitholders and the other Seller Investor Parties, on a Pro Rata Share basis, against all costs and expenses incurred by Representative from (i) the funds in the Expense Fund course of performance of Representative’s duties hereunder and (ii) losses, including costs of defense, paid or incurred in connection with any other funds that become payable action, suit, proceeding or claim to the Securityholders under this Agreement at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while the which 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 is made a party by reason of the Securityholders or otherwise. Notwithstanding anything in this Agreement fact that Representative was acting as Representative pursuant 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 that Representative shall not be entitled to indemnification hereunder to the extent it is finally determined by a court of competent jurisdiction by clear and convincing evidence that the acts or omissions of Representative be removed without the Stockholders having first appointed a new Representative who shall assume such duties immediately upon the removal of Representativeconstituted willful misconduct or fraud. Notice of such vote or a copy of the written consent appointing such new Representative shall be sent to ▇▇▇▇▇▇▇▇protected in acting upon any notice, such appointment statement or certificate believed by Representative to be effective upon genuine and to have been furnished by the later of the date indicated appropriate Person and in such consent acting or the date such notice is received by ▇▇▇▇▇▇▇▇; provided, that until such notice is received, ▇▇▇▇▇▇▇▇ shall be entitled refusing to rely act in good faith on the decisions and actions of the prior Representative as described hereinany matter.
(fc) Pursuant to Section 2.2(c)In the event that Representative resigns from its position as Representative, at the Closing, Kardigan a successor Representative shall deposit, on behalf be appointed by a Majority-in-Interest as promptly as practicable. Each successor Representative shall have all of the Securityholderspower, authority and rights conferred by this Agreement upon the Expense Fund Amount initial Representatives and the term “Representatives” herein shall be deemed to an account designated by the Representative (the “Expense Fund”), which will be used for include any expenses incurred by the successor Representative. The Securityholders will “Majority-in-Interest” means Unitholders and other Seller Investor Parties that, collectively, receive not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign less than 50.1% of Purchase Price paid 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 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
Sources: Asset Purchase Agreement (AgEagle Aerial Systems 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 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 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 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 In addition to the adoption of other rights and authority granted to the MergerRepresentative elsewhere in this Agreement, upon and by virtue of the approval of the requisite Company Stockholders of this Agreement, and pursuant to each Letter of Transmittal, all of the Company Stockholders collectively and irrevocably constitute and appoint the Representative as their agent and representative to act, provided however that the Representative shall have no obligation to the Company Stockholders to act other than as expressly provided herein, from and after the date hereof and to do any and all things and execute any and all documents that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including: (i) execution of this Agreement and/or acceptance of any benefits thereof, including any consideration payable the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof, each as contemplated by this Agreement; (iii) payment of amounts due to the Parent pursuant to this Agreement; (iv) receipt and forwarding of notices and communications pursuant to this Agreement; (v) administration of the Securityholders irrevocably nominateprovisions of this Agreement; (vi) giving or agreeing to, constitute on behalf of all or any of the Company Stockholders, any and appoint all consents, waivers, amendments or modifications deemed by the Representative, as in its sole and absolute discretion, 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; (vii) amending this Agreement or any of the Closinginstruments to be delivered to the Parent pursuant to this Agreement; (viii) (A) disputing or refraining from disputing, as the true and lawful agent and attorney in fact on behalf of each SecurityholderCompany Stockholder relative to any amounts to be received by such Company Stockholder under this Agreement or any agreements contemplated hereby, for all purposes any claim made by the Parent under this Agreement or other agreements contemplated hereby, (B) negotiating and compromising, on behalf of each such Company Stockholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (C) executing, on behalf of each such Company Stockholder, any settlement agreement, release or other document with respect to such dispute or remedy; (ix) engaging attorneys, accountants, agents or consultants on behalf of the Company Stockholders in connection with this AgreementAgreement or any other agreement contemplated hereby and paying any fees related thereto; and (x) if any Company Stockholder as of the Closing is not an accredited investor, serving as “purchaser representative” for such Company Stockholder as such term is defined in Rule 501 of Regulation D. Any such actions taken, exercises of rights, power or authority, and any related agreements, with full power in its, his decision 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 determination made 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 hereinconsistent herewith, shall be irrevocable absolutely and shall not be terminated by any act of any one irrevocably binding on each Company Stockholder as if such Company Stockholder personally had taken such action, exercised such rights, power or more Securityholders, authority or by operation of applicable law, whether by death made such decision 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 Securityholdersin such Company Stockholder’s individual capacity, and no Securityholder Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(cb) Each Securityholder agrees that: (i) Kardigan and its Affiliates Notwithstanding Section 5.19(a), in the event that the Representative is of the opinion that it requires further authorization or advice from the Company Stockholders on any matters concerning this Agreement, the Representative shall be able entitled to rely conclusively seek such further authorization or advice from the Company Stockholders prior to acting on their behalf. In such event, each Company Stockholders shall vote in accordance with the instructions pro rata portion of the Merger Consideration paid to such Company Stockholders in accordance with this Agreement and decisions the authorization of a majority of such Persons shall be binding on all of the Company Stockholders and shall constitute the authorization of the Company Stockholders. The appointment of the Representative as each Company Stockholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments pursuant represent such Company Stockholder with regard 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 Agreement. 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 irrevocable and is coupled with an interest and shall be enforceable notwithstanding irrevocable by any rights Company Stockholder in any manner or remedies that for any Securityholder reason. This authority granted to the Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of any principal pursuant to any applicable Law. ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund VI, L.P. hereby accepts its appointment as the initial Representative.
(c) The Representative may have resign from its position as Representative at any time by written notice delivered to the Parent and the Company Stockholders. If there is a vacancy at any time in connection the position of the Representative for any reason, such vacancy shall be filled by a majority vote in accordance with the transactions contemplated hereby; and (v) the provisions of this method set forth in 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 otherwise5.19(b).
(d) The All acts of the Representative will incur no hereunder in its capacity as such shall be deemed to be acts on behalf of the Company Stockholders and not of the Representative individually. Other than as a result of gross negligence or willful misconduct by the Representative, the Representative shall not have any liability for any amount owed to the Parent pursuant to this Agreement. Other than as a result of gross negligence or willful misconduct by the Representative, the Representative shall not be liable to the Company, the Parent or the Merger Sub, in his or its capacity as the Representative, for any liability of a Company Stockholder or otherwise, or for anything that it may do or refrain from doing in connection with this Agreement. The Representative shall not be liable to the Company Stockholders, in its services pursuant to capacity as the Representative, for any liability of a Company Stockholder or otherwise, or for any error of judgment, or any act done or step taken or omitted by it in good faith, or for any mistake in fact or Law, or for anything that it may do or refrain from doing in connection with this Agreement and any related agreements except to in the extent resulting from its case of the Representative’s gross negligence or willful misconduct. The Representative shall not be liable for any action or omission pursuant to may seek 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 legal 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 bankruptcyany dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as the Representative to the Parent, either Merger Sub, the Company or the Company Stockholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the advice of such counsel. As soon as practicable following The Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Company Stockholder, and the completion of parties acknowledge that the Representative’s responsibilities, obligations under this Section 5.19 are solely as a representative of the Company Stockholders and that the Representative will deliver shall have no personal responsibility or liability for any remaining balance of the Expense Fund to Kardigan for further distribution to the Securityholders expenses, costs or other liabilities incurred by it 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 capacity.
Appears in 1 contract
Sources: Merger Agreement (Office Depot Inc)
Representative. (a) By To the adoption fullest extent permitted by law, each Shareholder hereby irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇ as such Shareholder's attorney-in-fact and legal and judicial representative (the "Representative"), with full power of substitution, for the Mergerpurposes of: (i) receiving all notices and communications directed to any Shareholder under this Agreement and taking any action (or determining to take no action) with respect thereto as the Representative may deem appropriate, including the settlement or compromise on behalf of any Shareholder of any Third Party Claim or Losses, and by virtue of the execution of this Agreement and/or acceptance (ii) executing and delivering on behalf of any benefits thereofShareholder all instruments and documents of every kind the Representative may deem necessary or advisable to accomplish the foregoing. Each Shareholder hereby ratifies and confirms, including any consideration payable as the Shareholder's own act, all that the Representative shall do or cause to be done 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 If the Representative and ▇resigns, ▇▇▇▇▇▇▇ 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 automatically become the successor representative (the "Successor Representative"). The resigning Representative's resignation shall not be entitled effective until the Successor Representative shall have agreed in writing to rely accept such appointment. If the Representative should die or become incapacitated, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall automatically become the Successor Representative. Upon acceptance by a Successor Representative of the Successor Representative's appointment, the appointment shall be final and binding on the decisions and actions of the prior Representative as described hereinShareholders.
(fc) Pursuant Each Shareholder irrevocably agrees that with respect to Section 2.2(c)any Third Party Claim or any claim for indemnification hereunder, any service of process, writ, judgment or other notice of legal process shall be deemed and held in every respect to be effectively served upon the Shareholder if delivered by registered or certified mail, postage prepaid with return receipt requested to the Representative at the ClosingRepresentative's address set forth in Section 4.1, Kardigan whom each Shareholder irrevocably appoints as its authorized agent for service of process.
(d) The death or incapacity of any Shareholder shall deposit, on behalf not terminate the authority and agency of the Securityholders, the Expense Fund Amount Representative.
(e) Each Shareholder hereby agrees to an account designated by indemnify the Representative (and to hold the “Expense Fund”)Representative harmless against any loss, which will be used for any liability or expense incurred without negligent conduct or bad faith on the part of the Representative and arising out of or in connection with his duties as Representative, including court costs and attorneys' fees and expenses incurred by the Representative. The Securityholders will not receive Representative in defending against any interest Third Party Claim or earnings on Losses in connection with this Agreement, unless the Expense Fund and irrevocably transfer and assign Representative shall have received written notice from the other Shareholder to the Representative any ownership right effect 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 no longer represents 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 Closingother Shareholder.
Appears in 1 contract
Representative. (a) By In order to administer the adoption transactions contemplated by this Agreement and the Escrow Agreement, including the indemnification obligations of the MergerCompany Shareholders under this Article X, 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 Company Shareholders hereby designate 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 this Agreement and the Ancillary Agreements Escrow Agreement and as attorneys-in-fact and agent for and on behalf of each Company Shareholder, and the Representative accepts such appointment as Representative.
(b) The Company Shareholders hereby authorize the Representative to represent the Company Shareholders, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including without limitation, (i) to take all action necessary in connection with the discretion indemnification obligations of the Representative, and to do all things and to perform all actsCompany Shareholders under this Article X, including (1) amending the Ancillary Agreementsdefense or settlement of any claims and the making of payments with respect thereto, (2ii) waiving rightsto give and receive all notices required to be given by or to any Company Shareholder under this Agreement and the Escrow Agreement, (3iii) discharging liabilities to execute the Escrow Agreement for 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, Company Shareholders and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney (iv) to take any and all authority hereby conferred additional action as is coupled with an interest, is granted in consideration contemplated to be taken by or on behalf of the mutual covenants Company Shareholders by the Representative pursuant to this Agreement 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 eventthe Escrow Agreement.
(bc) In the event that the Representative dies, becomes unable to perform his responsibilities as Representative or resigns from such position, the Company Shareholders having an aggregate Ownership Percentage Interest greater than 50% 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 Escrow Agreement.
(d) All decisions and actions by the Representative, including without limitation any agreement between the Representative and ▇▇▇▇▇▇▇▇ the Buyer or the Escrow Agent relating to the determination indemnification obligations of the Merger Consideration Company Shareholders under this Article X, including the defense or settlement of any claims and the determination, dispute and facilitating the disbursement making of the Milestone Payments pursuant to this Agreementpayments with respect hereto, shall be binding upon all of the SecurityholdersCompany Shareholders, and no Securityholder Company Shareholders shall have the right to object, dissent, protest or otherwise contest the same. The Representative shall incur no liability to the Company Shareholders with respect to any action taken or suffered by the Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Representative's own willful misconduct or gross negligence. The Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and shall not be liable to the Company Shareholders for anything done, omitted or suffered in good faith by the Representative. The Company Shareholders shall severally indemnify the Representative and hold him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of his or her duties hereunder.
(ce) Each Securityholder agrees that: (i) Kardigan The Buyer and its Affiliates the Escrow Agent shall be able to rely conclusively on the instructions and decisions of the Representative with respect to the indemnification obligations of the Company Shareholders under this Article X, including the defense or settlement of any claims or the making of payments with respect thereto, or as to 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 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 the Buyer or its Affiliates for any action taken by such Person in reliance the Escrow Agent to the extent the Buyer or the Escrow Agent has relied 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 Company Shareholders acknowledge and agree that the Closing, Kardigan shall deposit, Representative may incur costs and expenses on behalf of the Securityholders, Company Shareholders in his capacity as Representative ("Representative Expenses"). Each of the Expense Fund Amount Company Shareholders agrees to an account designated by reimburse the Representative (the “Expense Fund”), which will be used for any such costs and expenses incurred by the RepresentativeRepresentative out of the Escrow Amount, promptly upon demand by the Representative therefore. The Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign amount to be paid by each such Company Shareholder shall be equal to the product of the amount of such Representative any ownership right that they may otherwise have had in any Expenses multiplied by such interest or earnings. The Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available Company Shareholder's Ownership Percentage Interest; provided, that, no Company Shareholder shall be required to its creditors pay, in the event of bankruptcy. As soon as practicable following the completion aggregate, Representative Expenses in an amount in excess of the Representative’s responsibilities, value of such Company Shareholder's Ownership Percentage Interest in the Representative will deliver any remaining balance of the Expense Fund Escrow Amount initially deposited in escrow pursuant 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 Closing2.8.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sycamore Networks Inc)
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 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 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 Each Seller hereby irrevocably appoints the adoption Representative to serve as the representative of such holder with respect to the Merger, and by virtue of the execution of matters expressly set forth in 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 be performed by the Representative, as of . Each Seller hereby irrevocably appoints the Closing, Representative as the true and lawful agent agent, proxy and attorney in fact of each Securityholder, for such holder for all purposes of this Agreement, including full power and authority on such holder’s behalf to (a) consummate the Transactions, (b) pay expenses (whenever incurred) in connection with this Agreementthe Transactions, and (c) disburse any related agreements, with full power in its, his or her name and on its, his or her behalf to act according funds received hereunder 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 AgreementsSellers or other payees, (2d) waiving rightsexecute and deliver any certificates or other instruments as Purchaser shall reasonably request, (3e) discharging liabilities execute 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 on such holder any amendment or waiver hereto, (f) take 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 Securityholderssuch holder in connection herewith, (g) negotiate, settle, compromise and not with each Securityholder; (iii) all actions, decisions and instructions otherwise handle any claims made by a Purchaser Indemnified Party or in respect 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; adjustments to Purchase Price and (vh) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives do each and successors of each Securityholder, every act 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 exercise any and all lossesrights which such holder is, liabilitiesor Sellers collectively are, 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 permitted or in connection with the Representative’s enforcement of its rights required to do or exercise 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 Ancillary Document. Each Seller agrees to have been caused by the bad faith, fraud, gross negligence or willful misconduct of the Representative, reimburse 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 for any fees and expenses incurred by the Representative from (i) the funds in the Expense Fund its capacity as such. All decisions, actions, consents 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 instructions of the Representative may be paid from relied upon by Purchaser and its Affiliates (including 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, Surviving Entity) and 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 Agreementother Person.
(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 (Boyd Gaming Corp)
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 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 the adoption The individual listed on Section 8.16 of the MergerDisclosure Schedule is hereby appointed as the true and lawful attorney-in-fact and agent of the Members (the “Representative”) to execute any and all instruments or other documents, and by virtue of to do any and all other acts or things, in the execution of this Agreement and/or acceptance of any benefits thereofMembers’ names and on their behalf, including any consideration payable that the Representative may deem necessary or advisable, or that may be required pursuant to this Agreement, each of the Securityholders irrevocably nominateEscrow Agreement or otherwise, 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 the consummation of the transactions contemplated hereby. Without limiting the generality of the foregoing, the Representative shall have the full power and authority, in the names of the Members and on their behalf, to: (i) agree with Parent with respect to any matter or thing required or deemed necessary by the Representative in connection with the provisions of this Agreement calling for the agreement of the Members, give and receive notices on behalf of all Members, and act on behalf of the Members in connection with any matter as to which the Members are or may be obligated to indemnify Parent 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 and the Ancillary Agreements all in the absolute discretion of the Representative; (ii) interpret the terms and provisions of this Agreement; (iii) dispute or fail to dispute any Losses claimed hereunder and to negotiate and compromise any dispute which may arise under this Agreement and to sign any releases or other documents with respect to any such dispute, including the interpretation of, disputing or failing to dispute the composition or amount of Cash, Debt, Closing Working Capital, Transaction Expenses or any item on the Closing Statement and negotiating and signing any release in respect of any dispute that may arise under Section 2.10; (iv) execute and deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement; (v) receive funds and give receipt for funds, including in respect of the Initial Merger Consideration, and any adjustment thereto, and to distribute to the Members the Per Unit Merger Consideration to which they are entitled; (vi) take all action necessary or desirable in connection with the waiver of any condition to the obligations of Members to consummate the transactions contemplated by this Agreement; and (vii) 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 agreements, certificates, receipts, instructions consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Representative to be necessary or 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 eventthis Agreement.
(b) All decisions and actions by the RepresentativeAny approval, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating to the determination consent, election, notice, decision, agreement, amendment, or other action of the Merger Consideration and the determinationMembers required or permitted under, dispute and facilitating the disbursement of the Milestone Payments pursuant to or otherwise provided for in, this Agreement, Agreement shall be binding upon conclusively deemed given, made, or taken (as the Securityholderscase may be) if given, and no Securityholder shall have the right to objectmade, 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 for the Ancillary AgreementsMembers, 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 Parent shall be required entitled to file and negotiate rely on any claims notice or disputes related to other document (of any kind) executed 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 delivered by the Representative (on behalf of the Securityholders) for all such purposes. In addition, each Member hereby releases 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 discharges Parent 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 the Representative’s enforcement failure to distribute any amounts received by the Representative on behalf of its rights the Members.
(c) The power of attorney created under this Agreement is coupled with an interest and shall be binding and enforceable on and against the respective heirs, personal representatives, successors, and assigns of the Members, and the power of attorney shall not be revoked or terminated by the death, disability, bankruptcy, incompetency, dissolution or termination of any Member, its heirs, personal representatives or its respective successors or assigns.
(d) In the event that the individual listed on Section 8.16 of the Disclosure Schedule (or any subsequent Representative appointed pursuant to this paragraph) resigns or otherwise becomes unable to serve, the Members shall, within 30 days after notice thereof, determine and designate by consent of those Members who held a majority of the Units immediately prior to the Effective Time, a successor Representative who shall have all of the rights, powers and authority conferred on the Representative in this Agreement, and if the Members fail so to designate such successor within such period, any Member or Parent may petition a court of appropriate jurisdiction for appointment of such successor Representative. The Members agree to promptly notify Parent in writing of any change of the Representative and Parent shall be entitled to rely on any action taken by Representative prior to receipt of notice of such change.
(e) Neither the Representative nor any agent employed by it shall incur any liability to any Member by virtue of the failure or refusal of the Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of its other agreement entered into duties hereunder, except for actions or omissions constituting fraud or willful misconduct. The Representative hereby is authorized to receive and hold the Expense Reserve Holdback and to disburse funds on behalf of the Members from and out of the Expense Reserve Holdback from time to time in connection with order to satisfy any obligations of the Members arising out of the transactions contemplated by this Agreement, in each case as such Representative Loss is suffered or incurred; providedincluding, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faithwithout limitation, fraudfiling fees, gross negligence or willful misconduct costs and expenses 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 attorneys and accountants and other experts engaged 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 Members, and any other contingent or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions unforeseen liabilities 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 earningsMembers. The Representative will hold these distribute any funds separate from its corporate funds and will not voluntarily make these funds available to its creditors remaining 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 Reserve Holdback to the Securityholders Members in accordance with their Allocable Shares no later than sixty (60) days after the Closing Working Capital calculation and the calculation of the Final Merger Consideration are finally determined pursuant to 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 Closing2.10.
Appears in 1 contract
Sources: Merger Agreement (Ducommun Inc /De/)
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. (ai) By Each Seller hereby irrevocably appoints the adoption Representative to serve as the representative of the Merger, and by virtue of Sellers with respect to the execution of matters expressly set forth in 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 be performed by the Representative, as of . Each Seller hereby irrevocably appoints the Closing, Representative as the true and lawful agent agent, proxy and attorney in fact of each Securityholder, for such Seller for all purposes of this Agreement, including full power and authority on such Seller’s behalf to (a) consummate the Transactions, (b) pay expenses (whenever incurred) in connection with this Agreementthe Transactions, and (c) disburse any related agreements, with full power in its, his or her name and on its, his or her behalf to act according funds received hereunder 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 AgreementsSellers or other payees, (2d) waiving rights, (3) discharging liabilities execute 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 such Seller any amendment or waiver hereto, (e) take all other actions to be binding taken by or on all Securityholdersbehalf of such Seller in connection herewith, (f) negotiate, settle, compromise and Shareholder Representative Services LLC hereby accepts such appointment. This power of attorney otherwise handle any claims made by an Indemnified Party and (g) do each and every act and exercise any 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 Securityholdersrights which such Seller is, or by operation of applicable lawthe Sellers collectively are, whether by death permitted or other event.
(b) All decisions and actions by the Representative, including any agreement between the Representative and ▇▇▇▇▇▇▇▇ relating required 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 do 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 exercise under this Agreement or any other actions required to be taken by the Representative under the Ancillary AgreementsTransaction Document. All decisions, 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 consents and instructions of the Representative shall may be conclusive relied upon by Purchaser and binding upon all Securityholders its Affiliates and no Securityholder shall have any cause other Person.
(ii) The Representative will not be liable to Purchaser or the Sellers in its capacity as the Representative for any Liability of action against a Seller or for any error of judgment, or for any act done or step taken or omitted by the Representative; (iv) Representative in good faith or for any mistake in fact or law, or for anything that it may do or refrain from doing in connection with this Agreement except in the case of actual fraud by it. The Representative may seek the advice of reputable legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Section 1.4 are independent Agreement or its duties hereunder, and severableit will incur no Liability in its capacity as Representative to Purchaser or the Sellers and will be fully protected with respect to any action taken, are irrevocable omitted or suffered by it in good faith in accordance with the opinion of such counsel. The Representative may in good faith rely conclusively on information, reports, statements and coupled with an interest opinions prepared or presented by counsel or other professionals retained by it, and shall any action taken by the Representative based on such reliance will be enforceable notwithstanding deemed conclusively to have been taken in good faith. The Representative will have full power and authority to interpret all the terms and provisions of this Agreement or any rights other agreement in connection herewith and to consent to any amendment hereof or remedies that any Securityholder may have thereof for, in the name and on behalf of all such Sellers and such successors.
(iii) Any expenses or liabilities incurred by the Representative in connection with the transactions contemplated hereby; performance of its duties under this Agreement will not be the personal obligation of the Representative but will be payable by the Sellers jointly and (v) the provisions severally. No provision of this Section 1.4 shall be binding upon Agreement or any other agreement in connection herewith will require the executorsRepresentative to expend or risk its own funds or otherwise incur any financial Liability in the exercise or performance of any of its powers, heirsrights, legal representatives and successors of each Securityholder, and any references in duties or privileges under this Agreement to a Securityholder shall mean and include the successors to such Securityholder’s rights hereunder, whether pursuant to testamentary disposition, the laws or any other agreement in connection herewith on behalf of descent and distribution or otherwiseany Seller.
(div) The Representative will incur no liability in connection with its services pursuant to this Agreement Sellers, jointly 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 severally, will indemnify, defend and hold harmless the Representative and its successors and assigns 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 the Representative’s enforcement execution and performance (solely in its capacity as the Representative) 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 Losses are incurred or incurred; providedsuffered, that in the event that any such Representative Loss is finally adjudicated to have been caused except for actual fraud 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 . Subject to the extent attributable to such fraudforegoing, 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 liable to advance any Seller (or its own funds on behalf of the Securityholders successors) for any indirect, punitive, special or otherwiseconsequential damages. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or This 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: Asset Purchase Agreement
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 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 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 IVP CIF II (PS Splitter), constitute L.P. (in the capacity described in this Section 7.18 and appoint each successor as provided below, 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 30 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 misconductparties. 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.[Signature Page Follows This Page]
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 adoption Each of the Merger, Sellers hereby appoints ▇▇▇▇ ▇▇▇▇▇ 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 as its, his or her exclusive agent and attorney-in-fact (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.“Representatives”)
(ca) Each Securityholder agrees that: (i) Kardigan to give and its Affiliates shall be able receive notices and communications with respect 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 Agreement (including under ARTICLE VIII hereof), (b) to amend the terms of this Agreement (but not individual contracts, the forms of which may be attached hereto or incorporated herein by reference), (c) to agree to, negotiate, enter into settlements or compromises of matters arising under the provisions of this Agreement and severable, are (d) to take any and all actions necessary or appropriate in the judgment of the Representatives to be taken on behalf of Sellers under such provisions of this Agreement (including under ARTICLE VIII hereof). Such agency is irrevocable and coupled with an interest interest. Upon the death or incapacity of either Representative, or his ceasing to be an employee or independent contractor of the Company or any Affiliate, the remaining Representative shall be the sole Representative and shall notify the Parent of such change in writing. Upon the death or incapacity of both Representatives, or their both ceasing to be an employee or independent contractor of the Company or any Affiliate, the Sellers, acting as a group with voting power based on voting power held by Sellers in the voting securities of the Company prior to the Closing Date shall appoint a successor Representative and shall notify the Parent of such successor in writing. Any successor Representative must be an employee of the Company or any Affiliate. Notwithstanding the foregoing, no bond shall be required of the Representatives and Sellers shall be responsible for the expenses of the Representatives incurred in the course of their duties as Representative, including reasonable attorneys’ fees. Notices or communications to or from a Representative shall constitute notice to or from Sellers in respect of matters relating to this Agreement. Any decision, act, consent or instruction of a Representative shall constitute a decision, act or consent of all Sellers, and shall be enforceable notwithstanding final, binding and conclusive upon each Seller, and Parent may rely upon any rights decision, act, consent or remedies that any Securityholder may have in connection with instruction of a Representative as being the transactions contemplated hereby; and (v) the provisions of this Section 1.4 shall be binding upon the executorsdecision, heirsact, legal representatives and successors consent or instruction 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 otherwiseevery Seller.
(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: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Representative. (a) By The Representative may be removed at any time upon the adoption written election of the Merger, Holders representing at least 75% of the aggregate Ownership Interests; provided that such Holders concurrently elect a replacement Representative and Parent is given prompt written notice of such replacement by the Representative (and such appointment is not binding on Parent until after Parent receives such written notice). By virtue of the execution of this the Principal Equityholders Agreement and/or acceptance by each Principal Equityholder, by the execution of any benefits thereofthe Option Cancellation Agreement by each Option Holder, by the execution of the Letter of Transmittal by each Holder and by the consummation of the transactions contemplated hereby, each Holder has constituted and hereby constitutes and appoints the Representative, including any consideration payable pursuant to this Agreement, each replacement of the Securityholders irrevocably nominate, constitute and appoint the any such 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 of substitution and authority to execute any amendment or her name and on its, his or her behalf to act according to the terms waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the Ancillary Agreements in the discretion provisions of the Representativethis Agreement, to give and receive notices and communications, to dispute any claim any Parent Indemnified Party with respect to indemnification hereunder, to agree to, negotiate, enter into settlements and compromises of, and to do all things comply with orders of courts with respect to any dispute or loss, and to perform take all acts, including (1) amending actions necessary or appropriate in the Ancillary Agreements, (2) waiving rights, (3) discharging liabilities and obligations, (4) determining, disputing and facilitating the disbursement judgment of the Milestone Payments Representative for the accomplishment of the foregoing. The Holders shall, pro-rata based upon their Ownership Interest, be responsible for the payment of all fees 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 expenses reasonably incurred by the Representative in performing its duties under this Agreement; provided, that Parent shall have no obligation or Liability arising from or relating to any claim or dispute between any Holder and the Representative under this Section 12.1 (and Parent’s rights, including Parent’s right to rely on behalf the actions and decisions of the Securityholders as provided hereunder Representative and other rights under this Agreement) shall not be affected in any way thereby. All actions and decisions of the Representative may be relied upon by the Parent, the Company and any third person, and 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 eventconclusive upon each Shareholder.
(b) All decisions The Representative shall be entitled to recover from the Principal Equityholders, on a pro-rata basis based upon the Principal Equityholder’s respective ownership interest in the Company Shares, any fees and actions by the Representative, including any agreement between expenses that the Representative and ▇▇▇▇▇▇▇▇ relating to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments may incur in his capacity as such pursuant to this Agreement. In that regard, 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; entitled to retain Five Hundred Thousand Dollars (iv$500,000) 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 Closing Merger Consideration otherwise 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 Principal Equityholders (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 the Expense Fund and irrevocably transfer and assign Funds shall be deemed paid 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 Principal Equityholders at Closing for all purposes hereunder 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 Closingunder applicable Laws.
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 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; (iv) administration of the provisions of this Agreement; (v) 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; (vi) taking actions the Representative is authorized to take pursuant to the other provisions of this Agreement; (vii) 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 (viii) 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 subject to reimbursement by 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 eventTRA Parties.
(b) All decisions and actions If any Representative is unable, as determined by PubCo in its reasonable discretion, to serve as the Representative or resigns as 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 a successor Representative shall be conclusive appointed by the TRA Parties who held (or whose predecessors held), as of the date of the consummation of the IPO, the majority of the DM Units then held by all TRA Parties (or their predecessors), excluding in each case DM Units with respect to which Early Termination Payments have been made. Each successor Representative shall sign an acknowledgment in writing agreeing to perform and binding upon be bound by 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 and shall have all of the Representative or the termination of power, authority, rights and privileges conferred by 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 Agreement upon the removal of original 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: Tax Receivable Agreement (Dynasty Financial Partners Inc.)
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 Purchase Price, and by virtue (ii) the waiver of any condition to the obligations of the execution of this Agreement Sellers to consummate the transactions contemplated hereby and (iii) the defense and/or acceptance settlement of any benefits thereof, including any consideration payable claims for which the Sellers may be required to indemnify the Buyer pursuant to this Agreement, each the Sellers hereby designate the Representative as their representative, attorney-in-fact and agent.
(b) The Sellers hereby authorize the Representative (i) to make all decisions relating to the determination of the Securityholders irrevocably nominateFinal Closing Adjustment and the Adjusted Purchase Price pursuant to Section 1.4, constitute and appoint (ii) to take all action necessary in connection with the Representative, as waiver of any condition to the obligations of the ClosingCompany and the Sellers to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VII hereof, (iii) to give and receive all notices required to be given under the Agreement and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the true Sellers by the terms of this Agreement, including the amendment hereof, and/or the Escrow Agreement.
(c) In the event that the Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Sellers (acting by the vote of the Sellers who immediately prior to the Closing held at least a majority of the outstanding Company Shares) shall select another representative to fill the vacancy of the Representative initially chosen by the Sellers, and lawful agent and attorney in fact of each Securityholder, such substituted representative shall be deemed to be the 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 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 eventdocuments delivered pursuant hereto.
(bd) All decisions and actions by 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 Merger Consideration Final Closing Adjustment, the Adjusted Purchase Price or the defense or settlement of any claims for which the Sellers may be required to indemnify the Buyer pursuant to Article VII hereof, shall constitute a decision, act, consent, instruction or action of all Sellers and shall be binding and conclusive upon each of such Sellers, and the determinationBuyer and the Escrow Agent may rely upon any such decision, dispute act, consent, instruction or action as being the decision, act, consent or instructions of each and facilitating every such Seller. The Buyer and the disbursement Escrow Agent are hereby relieved from any liability to any Seller for any acts done by them in accordance with such decision, act, consent, instruction or action of the Milestone Payments pursuant to Representative.
(e) By his, her or its execution of 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 each Seller 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 Final Closing Adjustment and the determinationAdjusted Purchase Price, dispute and facilitating the disbursement settlement of any claims for indemnification by the Milestone Payments Buyer pursuant to this Agreement Article VII 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 Seller 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 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Securityholder Seller may have in connection with the transactions contemplated herebyby this Agreement;
(iv) 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
(v) the provisions of this Section 1.4 1.7 shall be binding upon the executors, heirs, legal representatives representatives, personal representatives, successors and successors permitted assigns of each SecurityholderSeller, and any references in this Agreement to a Securityholder Seller or the Sellers shall mean and include the successors to such Securityholderthe Seller’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
Sources: Stock Purchase Agreement (Casella Waste Systems Inc)
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 -------------------------------------------------------------------------------- * Portions of this Exhibit have been deleted and filed separately with the Securities and Exchange Commission pursuant to the terms of Company's request for confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act. Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement and (the Ancillary Agreements in the discretion above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative, 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, 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 Subject to the adoption terms and conditions of the Mergerthis Section 10.19, and by virtue of the execution of this Agreement and/or acceptance Necessary Stockholder Approval and without any further action of any benefits thereofStockholders, including any consideration payable pursuant to this AgreementOptionholders or the Company, each of Fortis Advisors LLC is designated as the Securityholders irrevocably nominate, constitute Representative and appoint the Representative, as of the Closing, as the true and lawful attorney-in-fact and exclusive agent to act on behalf of the Stockholders and attorney Optionholders for certain limited purposes, as specified herein. The Necessary Stockholder Approval will, to the maximum extent permitted under applicable Law (including DGCL § 251(b)), constitute knowing and irrevocable ratification and approval of such designation by the Stockholders and Optionholders, and authorization of the Representative to serve in fact of each Securityholder, for such capacity (including the exclusive power to negotiate and settle any and all purposes in connection disputes with Buyer or Merger Sub 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 Escrow Agreement and the Ancillary Agreements in the discretion Paying Agent Agreement) and will also constitute a reaffirmation, approval, consent to, acceptance and adoption of, and an agreement to comply with and perform, all of the Representativeacknowledgments, waivers, releases, covenants 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 agreements made by the Representative on behalf of the Securityholders Stockholders and Optionholders in this Agreement and the other documents delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement), in each case, whether entered into or taken before, on or after the date of such approval. The Representative may resign at any time and may be removed only by the vote of Persons that collectively owned more than 50% of the Common Stock as provided hereunder shall be binding on all Securityholdersof immediately prior to the Effective Time (other than shares of Common Stock cancelled pursuant to Section 1.04(c) (such Persons, the “Majority Holders”). The designation of the Representative and Shareholder the powers, immunities and rights to indemnification granted to the Representative Services LLC hereby accepts such appointment. This power of attorney and all authority hereby conferred is Group hereunder: (i) are coupled with an interest, is granted in consideration of the mutual covenants and agreements made herein, shall be are irrevocable and shall will not be terminated affected by any the death, incapacity, illness, bankruptcy, dissolution, liquidation or other inability to act of any one of the Stockholders or more SecurityholdersOptionholders. In the event that a Representative has resigned or been removed in accordance with this Section 10.19(a), a new Representative will be appointed by the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Representative. Written notice of any such resignation, removal, or appointment of a Representative will be delivered by operation the Representative to Buyer promptly after such action is taken. The immunities and rights to indemnification shall survive the resignation or removal of applicable law, whether by death or other eventthe Representative and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(b) All decisions The Representative will have such powers and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and in any other document delivered in connection herewith (including the Escrow Agreement and the Paying Agent Agreement); provided, however, that the Representative will have no obligation to act on behalf of the Stockholders or Optionholders except as expressly provided herein or in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedules. The Company, the Surviving Corporation, Buyer, Merger Sub, the Escrow Agent, the Paying Agent and the Firm will be entitled to rely on the actions taken by the Representative without independent inquiry into the capacity of the Representative to so act. The Representative shall be entitled to: (i) rely upon the Estimated Closing Statement, (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 Stockholder, Optionholder or other party. All actions, notices, communications and determinations by the Representative to carry out its functions under this Agreement or the Escrow Agreement will conclusively be deemed to have been authorized by, and will be binding upon, the Stockholders and Optionholders and their successors as if expressly confirmed and ratified in writing by the Stockholders and Optionholders, and all defenses which may be available to any Stockholder or Optionholder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement or the Escrow Agreement are waived. Neither the Representative nor any of its officers, directors, employees, partners (general or limited), members, managers, contractors, agents or advisors (collectively, the “Representative Group”) will have any liability to Buyer, Merger Sub, the Company, the Surviving Corporation, the Stockholders or Optionholders, or any of their respective Affiliates, or any Person acting on behalf of the foregoing, with respect to actions taken, or omitted to be taken, by the Representative in such capacity (or its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith) under this Agreement or the Escrow Agreement. The Representative will be entitled to engage such Advisors as it will deem necessary in connection with exercising its powers and performing its functions hereunder or under the Escrow Agreement and (in the absence of bad faith on the part of the Representative) will be entitled to conclusively rely on the opinions and advice of such Persons in all matters. The Representative Group will be entitled to full reimbursement for all reasonable out-of-pocket expenses, disbursements and advances (including fees and disbursements of its Advisors) incurred by or on behalf of the Representative in such capacity (or any of its officers, directors, employees, partners (general or limited), members, managers, or Advisors in connection therewith), and shall be indemnified, defended and held harmless against any liabilities, losses, damages, obligations, costs, claims, fees, judgments, fines, amounts paid in settlement or expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) arising out of actions taken or omitted to be taken in its capacity as Representative, including the costs and expenses of investigation, defense, settlement or adjudication of any agreement between Proceeding, from the Stockholders and the Optionholders (including from funds to be distributed to the Stockholders or Optionholders under this Agreement at its direction, pursuant to or in connection with this Agreement (including under the Escrow Agreement and the Paying Agent Agreement)) (collectively, the “Representative Expenses”) and all payments required to be made under ARTICLE I are expressly subject to this Section 10.19(b). Each Stockholder and Optionholder will be responsible for its Pro Rata Portion of any amount owed to the Representative and ▇▇▇▇▇▇▇▇ relating in accordance with this Section 10.19(b) based upon the Pro Rata Portion of the number of Aggregate Fully-Diluted Shares held by such Stockholder or Optionholder immediately prior to the determination Closing. In furtherance of the foregoing, notwithstanding anything in this Agreement to the contrary, the Representative may recover Representative Expenses, first, from the Representative Holdback Amount, second from funds to be paid to the Stockholders or Optionholders as Merger Consideration pursuant to this Agreement after Closing, and third, directly from the determinationStockholders and Optionholders. The Stockholders and Optionholders 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, dispute and facilitating the disbursement of the Milestone Payments rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, or the transactions contemplated hereby or thereby. Furthermore, the Representative shall not be binding upon required to take any action unless the SecurityholdersRepresentative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Representative against the costs, expenses and no Securityholder shall have liabilities which may be incurred by the right Representative in performing such actions. The relationship created herein is not to objectbe construed as a joint venture or any form of partnership between or among the Representative or any Stockholder or Optionholder for any purpose of U.S. federal or state Law, dissentincluding federal, protest state or otherwise contest foreign income Tax purposes. Neither the sameRepresentative nor any of its Affiliates owes any fiduciary or other duty to any Stockholder or Optionholder.
(c) Each Securityholder agrees that: The Representative Holdback Amount shall be held by the Representative in a segregated client account and shall be used (i) Kardigan and its Affiliates shall be able to rely conclusively on for the instructions and decisions purposes of paying directly or reimbursing the Representative as to the determination of the Merger Consideration and the determination, dispute and facilitating the disbursement of the Milestone Payments for any Representative Expenses incurred pursuant to this Agreement or any other actions required to be taken by the Representative 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 the instructions or decisions of the Representative; (ii) Kardigan as otherwise determined by the Representative. The Representative is not providing any investment supervision, recommendations or advice and shall be required to file and negotiate have no responsibility or liability for any claims or disputes related to or in connection with the Ancillary Agreements, including the determination loss 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 principal of the Representative shall be conclusive and binding upon all Securityholders and no Securityholder shall have any cause Holdback Amount other than as a result 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 is not be liable for acting as a withholding agent or in 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 similar capacity in connection with the Representative’s enforcement of its rights under this Agreement Representative Holdback Amount and has no tax reporting 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 hereunderincome distribution obligations. 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, Stockholders 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 Optionholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer Representative Holdback Amount and assign to the Representative any ownership right that they may otherwise have had in any such interest or earningsinterest. The Representative will hold these may contribute funds separate to the Representative Holdback Amount from its corporate funds any consideration otherwise distributable to the Stockholders and will not voluntarily make these funds available to its creditors in the event of bankruptcyOptionholders. As soon as practicable following reasonably determined by the completion of Representative that the Representative’s responsibilitiesRepresentative Holdback Amount is no longer required to be withheld, the Representative will deliver any shall distribute the remaining balance of Representative Holdback Amount (if any) to the Expense Fund to Kardigan Escrow Agent and/or the Paying Agent, as applicable, 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 Stockholders and voluntarily set aside by the Securityholders at the time of Closingor Optionholders.
Appears in 1 contract
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) 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)