Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party.
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Samples: Agreement and Plan of Merger (Volcano Corp), Agreement and Plan of Merger (Volcano Corp)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company SecurityholderStockholders, each of the Company Securityholders Indemnifying Parties (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of CaliforniaLaw) shall be deemed to have agreed to appoint Fortis Advisors Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders Indemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder Indemnifying Party or by any such Company Securityholder Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Company SecurityholderIndemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding Indemnifying Parties with the right to a majority-in-interest majority of the Outstanding Shares (on an as converted Pro Rata Portions of the Escrow Fund from time to Company Common Stock basis) immediately prior to the Effective Timetime. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company SecurityholdersIndemnifying Parties, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
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Securityholders’ Representative. (a) By virtue of the approval Each Company Securityholder hereby irrevocably constitutes and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint appoints Fortis Advisors LLC as his, her or its sole, exclusive, true and lawful agent and attorney-in-fact (the “Securityholders’ Representative”) for ), with full power of substitution to act in such Company Securityholder’s name, place and on behalf of the Company Securityholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 stead with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the all transactions contemplated hereby, by and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms and provisions of this Agreement or the Escrow Agreement. Such agency may be changed , and to act on such Company Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents, on such Company Securityholder’s behalf, as the Securityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the power: (i) to execute and deliver this Agreement and any and all amendments, waivers or modifications hereof; (ii) to waive any condition to the obligations of such Company Securityholders holding a majority-in-interest Securityholder to consummate the transactions contemplated by this Agreement; (iii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Company Securityholder that the Securityholders’ Representative deems necessary or appropriate in connection with the consummation of the Outstanding Shares transactions contemplated by this Agreement or the Escrow Agreement; and (iv) to do or refrain from doing any further act or deed on an behalf of such Company Securityholder as converted to Company Common Stock basis) immediately prior is assigned, delegated or charged to the Effective TimeSecurityholders’ Representative or that the Securityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, as fully and completely as such Company Securityholder could do if personally present. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice shall have no obligation to act on behalf of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority except as expressly provided herein, in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and in the Escrow Paying Agent Agreement. No bond shall be required , and for purposes of clarity, there are no obligations of the Securityholders’ Representative in connection with its services hereunderany ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The Securityholders’ Representative shall All such actions set forth or described in this Section 1.14(a) will be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it deemed to be genuine, facts ascertainable outside this Agreement and (iii) reasonably assume that a signatory has proper authorization to sign will be binding on behalf of the applicable Company Securityholder or other partySecurityholders.
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Securityholders’ Representative. (a) By virtue Each Seller hereby irrevocably designates and appoints Pro-Edge, LP. as, and Pro-Edge, LP. hereby irrevocably accepts the designation as and agrees to be, the representative of each Seller and the approval and adoption “Securityholders Representative” for purposes of this Agreement by Agreement. The Securityholders Representative is hereby designated as the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its attorney in fact and agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of each Seller and his, her or its respective heirs, successors and assigns with respect to the Company exercise of the power to take all actions and make all decisions on behalf of each Seller under this Agreement and any other document or agreement delivered in connection herewith, including without limitation, decisions and actions with respect to payments and adjustments under Article II, with respect to satisfaction and waiver of closing conditions under Article IX, and with respect to claims for indemnification under Article X. The Securityholders Representative also shall have the power to give and receive all notices and communicationscommunications to be given or received by the Sellers, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between of them, under this Agreement and to receive service of process for the Sellers, or any Indemnified Party and any such Company Securityholderof them, in each case relating to connection with any claims under this Agreement or the transactions contemplated hereby, and to take all actions on behalf of the Sellers, or any of them, necessary to settle, pay or take any other actions that are either (i) necessary with respect to the Sellers’ or appropriate any Seller’s indemnification obligations under Article X. Each Seller shall be bound by all actions taken and documents executed by the Securityholders Representative in connection with this Agreement. Notices or communications to or from the judgment Securityholders Representative shall constitute notice to or from each Seller. In performing the functions specified in this Agreement, the Securityholders Representative may act upon any instrument or other writing believed by the Securityholders Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement. The Securityholders Representative shall be indemnified and held harmless by the Indemnifying Securityholders, jointly and severally, and in accordance with each Indemnifying Securityholder Applicable Indemnification Portion, from and against any Losses incurred on the part of the Securityholders’ Securityholders Representative for and arising out of or in connection with the accomplishment acceptance or administration of its duties hereunder. Without limiting the foregoing or (ii) specifically mandated by the terms generality of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Securityholders Representative may resign at any time by providing written notice of intent shall have full power and authority to resign to interpret all the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities terms and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyall Indemnifying Securityholders and their respective heirs, successors and assigns.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Intrexon Corp)
Securityholders’ Representative. (a) By virtue of the approval and adoption of Each Seller Securityholder by approving this Agreement by and the requisite consent transactions contemplated hereby, executing a Letter of Transmittal and/or participating in the Company Stockholders or by Merger and accepting the execution of a letter of transmittal by a Company Securityholderbenefits thereof, each of the Company Securityholders (other than such Company Stockholdershereby irrevocably and unconditionally appoints Papachey, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC Inc. as its agent true and lawful attorney-in-fact fact, to act as its representative (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to give and receive notices and communicationsunder this Agreement and, as such, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction act, as such holder’s agent (with full power of claims by any Indemnified Partysubstitution), to object to take 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 action on such holder’s behalf with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case all matters relating to this Agreement or Agreement, the Merger and the transactions contemplated hereby, and to take all other actions that are either including (i) to execute and deliver all certificates and documents that the Securityholders’ Representative deems necessary or appropriate in connection with the judgment consummation of the Merger; (iii) to receive and provide a receipt for all payments made by Buyer and/or Seller to any of the Seller Securityholders under this Agreement; (iv) to pay for or reimburse itself for the costs and expenses of the Securityholders’ Representative for under this Agreement and the accomplishment Escrow Agreement out of the foregoing Securityholders’ Representative Expense Fund; (v) to terminate, amend or (ii) specifically mandated by the terms waive any provision of this Agreement or the Escrow Agreement. Such agency may be changed by , provided that any such termination, amendment or waiver, if material to the Company Securityholders holding a majority-in-interest rights and obligations of the Outstanding Shares Seller Securityholders in the reasonable judgment of the Securityholders’ Representative, shall be taken in the same manner with respect to all holders unless otherwise agreed by each holder who is subject to any disparate treatment of a potentially adverse nature; (vi) to defend and settle all disputes and claims that arise under this Agreement or the Escrow Agreement or any other, certificate or instrument delivered in connection with this Agreement or the Escrow Agreement; and (vii) to do or refrain from doing any further act or deed on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, behalf of such holders that the Securityholders’ Representative may resign at any time by providing written notice of intent to resign deems necessary or appropriate in such Person’s sole discretion relating to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination subject matter of this Agreement and the Escrow AgreementAgreement as fully and completely as any Seller Securityholder could do if personally present and acting. No bond shall be required of All decisions and actions by the Securityholders’ Representative, including any agreement between the Securityholders’ Representative in connection and the Buyer Indemnified Parties relating to indemnification obligations of the Seller Securityholders under Article IX, including the defense or settlement of any claims and the making of payments with its services hereunderrespect hereto, shall be binding upon all of the Seller Securityholders, and no holder shall have the right to object, dissent, protest or otherwise contest the same. The Securityholders’ Representative shall be entitled to: (i) rely upon incur no liability to the Payment Schedule, (ii) rely Seller Securityholders with respect to any action taken or suffered by such holders in reliance upon any signature notice, direction, instruction, consent, statement or other documents believed by it the Securityholders’ Representative to be genuinegenuinely and duly authorized, nor for any other action or inaction taken in its capacity as the Securityholders’ Representative, including with respect to the indemnification obligations of the Seller Securityholders under Article IX, including the defense or settlement of any claims and the making of payments with respect thereto. The Securityholders’ Representative may, in all questions arising under this Agreement, the Escrow Agreement and the transactions contemplated thereby, rely on the advice of counsel, and (iii) reasonably assume that a signatory has proper authorization for anything done, omitted or suffered in good faith by the Securityholders’ Representative shall not be liable to sign on behalf of the applicable Company Securityholder or other partySeller Securityholders.
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Securityholders’ Representative. (a) By virtue of the approval and adoption of The Company Securityholders, by approving this Agreement by and the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholdertransactions contemplated hereby, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to hereby irrevocably appoint Fortis Advisors LLC as its Securityholders’ Representative in accordance with the terms of the securityholders’ representative agreement attached hereto as Exhibit I (the “Securityholders’ Representative Agreement”), including to act as their agent and attorney-in-fact (for purposes of this Agreement and the “Escrow Agreement, consent to the taking by the Securityholders’ Representative”) for Representative of any and on behalf all actions and the making of any decisions required or permitted to be taken by it under this Agreement and the Escrow Agreement (including the exercise of the Company Securityholders to give and receive notices and communications, power to authorize payment delivery to any Indemnified Party from Parent of the Escrow Fund Funds in satisfaction of claims by any Indemnified PartyParent or otherwise, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, of and demand arbitration arbitration, and comply with orders of courts and awards of arbitrators with respect to such claimsclaims or otherwise, resolve any claims made pursuant to assert, negotiate, enter into settlements Section 10 and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated herebyEscrow Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing foregoing) and waive any and all defenses which may be available to contest, negate or (ii) specifically mandated by disaffirm the terms action of the Securityholders’ Representative taken in good faith under this Agreement or the Escrow Agreement. Such agency may Parent shall be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted entitled to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, deal exclusively with the Securityholders’ Representative may resign at any time by providing written notice of intent on all matters relating to resign to this Agreement and the Company SecurityholdersEscrow Agreement, which resignation and shall be effective upon the earlier entitled to rely conclusively (without further evidence of (Aany kind whatsoever) thirty (30) calendar days following delivery on any document executed or purported to be executed on behalf of such written notice or (B) the appointment of a successor any Company Securityholder by the holders Securityholders’ Representative, and on any other action taken or purported to be taken on behalf of a majority in interest of any Company Securityholder by the Escrow FundSecurityholders’ Representative, as fully binding upon such Company Securityholder. The immunities rights and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal obligations of the Securityholders’ Representative or any member shall be as set forth herein and in the Securityholders’ Representative Agreement. If the Securityholders’ Representative shall become unable to fulfill its responsibilities as agent of the Advisory Group Company Securityholders, then the Company Securityholders who held a majority of the voting Company Capital Stock immediately prior to the Merger (the “Requisite Former Company Securityholders”) are authorized and shall, within 10 days after disability or resignation, appoint a successor agent and, promptly thereafter, shall notify Parent of the Closing and/or any termination identity of such successor. Any such successor shall become the “Securityholders’ Representative” for purposes of this Agreement and the Escrow Agreement. No bond shall be required of the If for any reason there is no Securityholders’ Representative in connection with its services hereunder. The at any time, all references herein to the Securityholders’ Representative shall be entitled to: (i) rely upon deemed to refer to the Payment 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 Requisite Former Company Securityholder or other partySecurityholders.
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Securityholders’ Representative. (a) By virtue Each Securityholder, pursuant to the terms of the approval and adoption Letter of this Agreement Transmittal to be entered into by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company such Securityholder, each of has designated and appointed North Bridge and Xxxxxx Xxxx, jointly as the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissentersSecurityholders’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC Representative and as its exclusive agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of each Securityholder, with full power and authority in each of the Company Securityholders Securityholders’ names, to give and receive notices and communications, to authorize payment agree to, negotiate and enter into, on behalf of each such Securityholder, amendments, consents and waivers under this Agreement or any Valence Closing Document pursuant to the terms set forth herein and therein, to make and receive payments on behalf of the Securityholder pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the determination of the Final Adjustment Amount pursuant to Section 2.11 hereof and the Earnout Amount, the defense and/or settlement of any indemnification claims of any Evolent Indemnified Party from Person pursuant to Article IX, to take all actions authorized by the Escrow Agreement, including defending or settling any claims thereunder and releasing and transferring any of the Escrow Fund to Evolent in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises ofaccordance with the terms set forth therein, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing foregoing; provided, however, that the Securityholders’ Representative shall have no obligation to act, except as expressly provided herein. All such actions of the Securityholders’ Representative shall be binding on the Securityholders as if expressly confirmed and ratified in writing by each of them, and no Securityholder shall have the right to object, dissent, protest or (ii) specifically mandated by otherwise contest the terms of this Agreement or the Escrow Agreementsame. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing vote or written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor consent by the holders of a majority in interest of the Escrow FundShares on an as-converted basis as of the Closing Date, voting in the same manner as would have been voted in accordance with the Organizational Documents of Valence Parent as in effect immediately prior to the Closing Date (the “Majority Holders”), from time to time upon not less than ten (10) days’ prior written notice to Evolent. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If at any time the Securityholders’ Representative resigns, dies or any member becomes incapable of acting, the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond Majority Holders shall be required of appoint another Person to act as the Securityholders’ Representative in connection with its services hereunderunder this Agreement and immediately thereafter notify Evolent of the identity of such successor. Each successor Securityholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Securityholders’ Representative, and the term “Securityholders’ Representative” as used herein shall be deemed to include any interim or successor Securityholders’ Representative. The Securityholders may not make a claim for indemnity against Evolent pursuant to this Agreement except through the Securityholders’ Representative, who shall make such a claim only upon the written direction of the Majority Holders. The Securityholders’ Representative shall be entitled to: (i) rely upon have reasonable access to relevant information about Valence Parent and a reasonable opportunity to consult with employees of Valence Parent solely for purposes of performing its duties and exercising its rights hereunder, provided that the Payment Schedule, (ii) rely upon Securityholders’ Representative shall treat confidentially and not disclose any signature believed by it nonpublic information from or about Valence Parent to be genuine, and (iii) reasonably assume that anyone except on a signatory has proper authorization need to sign on behalf of the applicable Company Securityholder or other partyknow basis to individuals who agree to treat such information confidentially.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Evolent Health, Inc.)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement and the approval of the Merger by the requisite consent Securityholders, each Securityholder (regardless of whether or not such Securityholder votes in favor of the Company Stockholders adoption of this Agreement and the approval of the Merger, whether at a meeting or by written consent in lieu thereof, or otherwise approves or consents to the execution adoption of a letter of transmittal by a Company Securityholderthis Agreement and the Merger) hereby initially appoints, each as of the Company Securityholders (other than such Company Stockholdersdate of this Agreement, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for . The Securityholders’ Representative shall have full power and on behalf of the Company Securityholders authority to give take all actions under this Agreement and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims Agreement that are to be taken by the Securityholders’ Representative. The Securityholders’ Representative shall take any Indemnified Partyand all actions which it believes are necessary or appropriate under this Agreement and the Escrow Agreement, to object to such paymentsincluding, to agree towithout limitation, negotiateexecuting the Escrow Agreement as Securityholders’ Representative, enter into settlements giving and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, receiving any other claim by any Indemnified Party against any Company Securityholder notice or by any such Company Securityholder against any Indemnified Party instruction permitted or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to required under this Agreement or the transactions contemplated herebyEscrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to take be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other actions that are either (i) necessary obligations of or appropriate in the judgment of incurred by the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all NWC Claims and Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Such agency may be changed by Without limiting the Company Securityholders holding a majority-in-interest generality of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent shall have the full power and authority to resign to interpret all the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities terms and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement. No bond shall be required of the Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
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Securityholders’ Representative. (a) By Each Company Securityholder by virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware Laws) or the applicable laws of the State of California) by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors LLC LLC, a Delaware limited liability company, as its agent and attorney-in-fact (the “”Securityholders’ Representative”) for and on behalf of the Company Securityholders to act for the Company Securityholders with regard to matters pertaining to Sections 1.17, 1.18, 1.19, 5.10, 5.15, 7.3, Article VIII and Article IX, give and receive notices and communications, to authorize payment to any Indemnified Party Person from the Escrow Fund Amount in satisfaction of claims by any Indemnified PartyPerson, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party Person against any Company Securityholder or by any such Company Securityholder against any Indemnified Party Person or any dispute between any Indemnified Party Person and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. All actions of the Securityholders’ Representative shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Company Securityholders as a matter of contract law. Each Company Securityholder agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. Such agency may be changed by the Company Securityholders holding with the right to a majority-in-interest majority of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective TimeEscrow Amount from time-to-time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow FundAmount. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any member of reason there is no Securityholders’ Representative at any time, all references herein to the Advisory Group and Securityholders’ Representative shall be deemed to refer to the Closing and/or any termination of this Agreement and the Escrow AgreementCompany Securityholders. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Representative, and the Securityholders’ Representative shall not receive any compensation for its services. A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partySecurityholders.
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Securityholders’ Representative. (a) By virtue of At the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company SecurityholderEffective Time, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors irrevocably constituted and appointed Xxxxxxx River Ventures, LLC as its the true and lawful agent and attorney-in-fact (of the “Securityholders’ Representative”) for Securityholders in the capacity as the Securityholders Representative with full power of substitution to act in the name, place and stead of the Securityholders in connection with the Merger, the transactions contemplated by this Agreement and the Escrow Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Company Securityholders to give and receive notices and communicationsin any litigation or arbitration involving this Agreement, to authorize payment to any Indemnified Party do or refrain from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to doing all such payments, to agree to, negotiate, enter into settlements further acts and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated herebythings, and to take execute all other actions that are either (i) such documents as the Securityholders Representative shall deem necessary or appropriate in connection with the judgment transactions contemplated by this Agreement. Without limiting the generality of the Securityholders’ foregoing, the Securityholders Representative for shall have the accomplishment of power to take any and all other actions which it believes are necessary or appropriate in connection with the foregoing transactions contemplated by this Agreement, including, without limitation, executing this Agreement, the Escrow Agreement and any amendment hereto or (ii) specifically mandated by the terms of thereto as Securityholders Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement. Such agency may be changed Agreement by the Company Securityholders holding a majorityRepresentative, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-inof-interest pocket fees and expenses and other obligations of or incurred by the Outstanding Shares Securityholders Representative in connection with this Agreement and the Escrow Agreement, defending all indemnity claims against the Escrow Amount pursuant to Section 8.2 (on an as converted to Company Common Stock basis) immediately prior to “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with the Effective TimeParent Parties and their agents regarding such claims, dealing with the Parent Parties and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement and the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Notwithstanding Without limiting the generality of the foregoing, the Securityholders’ Securityholders Representative may resign at any time by providing written notice of intent shall have the full power and authority to resign to interpret all the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities terms and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Agreement and to consent to any amendment or waiver hereof or thereof in its capacity as Securityholders Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NMS Communications Corp)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of Carl Goldfischer shall be the Company Stockholders or by Indemnifying Parties' and the execution of a letter of transmittal by a Company SecurityholderCoxxxxx Xxxxxxxxxxd Parties' representative (the "Securityholders' Representative") and, each of the Company Securityholders (other than such Company Stockholdersas such, if any, who shall serve as and have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC all powers as its agent and attorney-in-fact (of each Company Indemnifying Party or Company Indemnified Party, as the “Securityholders’ Representative”) case may be, for and on behalf of each Company Indemnifying Party or Company Indemnified Party, as the Company Securityholders case may be: (i) to give and receive notices and communications, communications with respect to any matters related to this Agreement for which the Securityholders' Representative is authorized to act; (ii) to authorize payment to any Indemnified Party delivery of cash from the Indemnification Escrow Fund in satisfaction of claims by any to a Parent Indemnified Party, ; (iii) to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany claim for indemnification pursuant to this Article 8; (iv) to litigate, to assertmediate, negotiatearbitrate, enter into settlements and compromises ofdefend, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, enforce or take any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party actions and execute the Indemnification Escrow Agreement and any such Company Securityholder, other documents that the Securityholders' Representative deems advisable in each case relating to connection with enforcing any rights or obligations or defending any claim or action under this Agreement on behalf of the Company Indemnifying Parties and the Company Indemnified Parties; (v) to sign receipts, consents or other documents in connection with the transactions contemplated hereby, Securityholders' Representative's duties hereunder; and (vi) to take any and all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ ' Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreementforegoing. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an If Carl Goldfischer ceases to act as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ ' Representative may resign at any time by providing written notice xxx xxx xxxxxx, Steven A. Elms shall be appointed as the Securityholders' Representatixx. Xx Xxxxxx A. Elms ceases to act as the Securityholders' Representative fox xxx xxxxxx, such Securityholders' Representative or his agent shall notify Parent of such Securityholders' Representative's intent to resign as Securityholders' Representative, and the Securityholders entitled to receive a majority of the Company Total Merger Consideration (determined as of the date hereof) (a "Majority") shall, by written notice to Parent, appoint a successor Securityholders, which resignation shall be effective upon the earlier of (A) ' Representative within thirty (30) calendar days following delivery of such written days. Notice or communications to or from the Securityholders' Representative shall constitute notice to or (B) from the appointment of Company Indemnifying Parties and the Company Indemnified Parties. All actions to be taken by a successor Company Indemnified Party or Company Indemnifying Party, as the case may be, shall be taken solely by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party' Representative.
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Securityholders’ Representative. (a) By Each Company Securityholder by virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware Laws) or the applicable laws of the State of California) by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors LLC LLC, a Delaware limited liability company, as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to act for the Company Securityholders with regard to matters pertaining to Sections 1.17, 1.18, 1.19, 5.5, 5.9, 5.14, 7.3, Article VIII and Article IX, give and receive notices and communications, to authorize payment to any Indemnified Party Person from the Escrow Fund Amount in satisfaction of claims by any Indemnified PartyPerson, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party Person against any Company Securityholder or by any such Company Securityholder against any Indemnified Party Person or any dispute between any Indemnified Party Person and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. All actions of the Securityholders’ Representative shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Company Securityholders as a matter of contract law. Each Company Securityholder agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. Such agency may be changed by the Company Securityholders holding with the right to a majority-in-interest majority of the Outstanding Shares (on an as converted Escrow Amount from time to Company Common Stock basis) immediately prior to the Effective Timetime. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) 30 calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow FundAmount. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any member of reason there is no Securityholders’ Representative at any time, all references herein to the Advisory Group and Securityholders’ Representative shall be deemed to refer to the Closing and/or any termination of this Agreement and the Escrow AgreementCompany Securityholders. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Representative, and the Securityholders’ Representative shall not receive any compensation for its services. A decision, act, consent or instruction of the Securityholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partySecurityholders.
Appears in 1 contract
Securityholders’ Representative. (a) By Each Escrow Participant by virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware Law) or the applicable laws of the State of California) by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors Telegraph Hill Partners Management Company LLC as its agent and attorney-in-fact (the “Securityholders’ RepresentativeRepresentative ”) for and on behalf of the Company Securityholders Escrow Participants to act for the Escrow Participants with regard to matters pertaining to Sections 2.6, 2.7, 6.8, 7.3, Article IX and Article X, give and receive notices and communications, to authorize authorizes payment to any Indemnified Party Person from the Indemnity Escrow Fund Amount in satisfaction of claims by any Indemnified PartyPerson, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party Person against any Company Securityholder Escrow Participant or by any such Company Securityholder Escrow Participant against any Indemnified Party Person or any dispute between any Indemnified Party Person and any such Company SecurityholderEscrow Participant, in each case relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Each Escrow Participant agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. Such agency may be changed by the Company Securityholders holding Escrow Participants with the right to a majority-in-interest majority of the Outstanding Shares (on an as converted Indemnity Escrow Amount from time to Company Common Stock basis) immediately prior to the Effective Timetime. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company SecurityholdersEscrow Participants, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Indemnity Escrow FundAmount. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or any member otherwise be unable to fulfill its responsibilities hereunder, the Escrow Participants shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror of the Advisory Group and identity of such successor. Any such successor shall succeed the Closing and/or former Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any termination of reason there is no Securityholders’ Representative at any time, all references in this Agreement and to the Securityholders’ Representative shall be deemed to refer to the Escrow AgreementParticipants. No bond shall be required of the Securityholders’ Representative in connection with its services hereunderRepresentative. The A decision, act, consent or instruction of the Securityholders’ Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Escrow Participants and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partyEscrow Participants.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mesa Laboratories Inc /Co/)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company SecurityholderCompany’s stockholders, each of the Company Securityholders Escrow Participants (other than such Company StockholdersEscrow Participants, if any, who have to the extent such Escrow Participant has properly asserted or exercised and perfected dissenters’ or appraisal rights under Delaware the NRS and who have not effectively withdrawn or the applicable laws of the State of Californialost such dissenters’ rights) shall be deemed to have agreed to appoint Fortis Advisors LLC LLC, a Delaware limited liability company as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders Escrow Participants to give and receive notices and communications, to authorize payment to any Indemnified Covered Party from the Escrow Fund in satisfaction of claims by any Indemnified Covered 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Covered Party against any Company Securityholder Escrow Participant or by any such Company Securityholder Escrow Participant against any Indemnified Covered Party or any dispute between any Indemnified Covered Party and any such Company SecurityholderStockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow AgreementAgreement (it being understood that all such actions shall be deemed to be facts ascertainable outside this Agreement and be binding on the Escrow Participants as a matter of contract law). Such agency may be changed by the Company Securityholders holding Escrow Participants with the right to a majority-in-interest majority of the Outstanding Shares (on an as converted Pro Rata Portions of the Escrow Fund from time to Company Common Stock basis) immediately prior to the Effective Timetime. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company SecurityholdersEscrow Participants, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyStockholder’s Representative.
Appears in 1 contract
Securityholders’ Representative. (a) By Each Company Securityholder, by virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under the Delaware Code) or the applicable laws of the State of California) by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors LLC Josh Held as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to act for the Company Securityholders as set forth herein, including, without limitation, with regard to matters pertaining to Sections 1.4, 2.3, 2.4, 2.5, 2.6, 6.4, 6.6, 7.3, Article IX and Article X, give and receive notices and communications, to authorize payment to any Indemnified Party from the offsetting Escrow Fund Shares in satisfaction of claims by any Indemnified PartyPerson, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party Person against any Company Securityholder Escrow Participant or by any such Company Securityholder against any Indemnified Party Person or any dispute between any Indemnified Party Person and any such Company Securityholder, in each case case, relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by Each Company Securityholder agrees to receive correspondence from the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective TimeSecurityholders’ Representative, including in electronic form. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow FundShares. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or any member otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror of the Advisory Group and identity of such successor. Any such successor shall succeed the Closing and/or former Securityholders’ Representative as the Securityholders’ Representative hereunder. If, for any termination of reason, there is no Securityholders’ Representative at any time, all references in this Agreement and to the Securityholders’ Representative shall be deemed to refer to the Escrow AgreementParticipants. No bond shall be required of the Securityholders’ Representative in connection with its services hereunderRepresentative. The A decision, act, consent or instruction of the Securityholders’ Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partySecurityholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cure Pharmaceutical Holding Corp.)
Securityholders’ Representative. (a) By Effective upon and by virtue of the approval Stockholder Approval approving and adoption of adopting this Agreement by and the requisite consent Mergers, and without any further act of any of the Company Stockholders or by Securityholders, the execution of a letter of transmittal by a Company Securityholder, each Securityholders’ Representative will be hereby irrevocably appointed as the representative of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or and as the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) and agent for and on behalf of each such Company Securityholder for purposes of this Agreement and will be empowered to take such actions contemplated to be taken by the Securityholders’ Representative under this Agreement, the Ancillary Agreements and such other actions on behalf of such Company Securityholders as it may deem necessary or appropriate in connection with or to give consummate the transactions contemplated hereby or thereby, including, without limiting the generality of the foregoing, (i) taking all actions and receive notices and communicationsmaking all filings on behalf of such Company Securityholders with any Governmental Authority or other Person necessary to effect the consummation of the Contemplated Transactions, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree (ii) agreeing to, negotiatenegotiating, enter entering into settlements and compromises of, and demand arbitration and comply complying with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, and otherwise administering and handling any other claim by any Indemnified Party against any Company Securityholder or by any claims under this Agreement and the Ancillary Agreements on behalf of such Company Securityholder against Securityholders, including indemnifications claims, (iii) negotiating and executing any Indemnified Party waivers or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to amendments of this Agreement or and the transactions contemplated herebyAncillary Agreements, and to take (iv) taking all other actions that are either (i) necessary or appropriate in the its judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated contemplated by the terms of this Agreement or and the Escrow AgreementAncillary Agreements. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the The Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of hereby accepts such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementappointment. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
Appears in 1 contract
Securityholders’ Representative. (a) By Xxxxxxx X. Xxxxx shall, by virtue of the Merger and the approval and adoption of this Agreement by at the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company SecurityholderSpecial Meeting held pursuant to Section 5.4, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and appointed attorney-in-fact (the “Securityholders’ Representative”with full power of substitution) and authorized and empowered to act for and on behalf of any or all of the holders of the Company Shares and Company Options immediately prior to Merger who are entitled to receive TSA Common Stock hereunder (the "Securityholders") in connection with the following matters: the indemnity provisions of Article X as they relate to the Securityholders generally, the escrow provisions of Article X, the notice provisions of this Agreement and such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby (the above named representative, as well as any subsequent representative of the Securityholders appointed by him or after his death or incapacity elected by vote of holders of a majority of the Company Shares to give be converted in the Merger and receive notices shares of Common Stock of the Company purchasable on the Effective Date pursuant to Company Options to be converted in the Merger (each being referred to as a "Securityholders' Representative"). By his execution hereof, Xxxxxxx X. Xxxxx hereby accepts such appointment and communications, agrees to authorize payment act as Securityholders' Representative hereunder. The Securityholders' Representative shall not be liable to any Indemnified Party from Securityholder, the Escrow Fund in satisfaction of claims by Buying Parties or the Company or 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 other person with respect to such claims, any action taken or omitted to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply be taken by the Securityholders' Representative under or in connection with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement unless such action or omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment part of the Securityholders’ Representative for the accomplishment ' Representative. Each of the foregoing or Buying Parties and each of their respective Affiliates (iias defined in Section 3.14, and including, after the Closing, the Company) specifically mandated by shall be entitled to rely on such appointment and treat the terms of this Agreement or Securityholders' Representative as the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majorityduly appointed attorney-in-interest fact of each Securityholder. Each Securityholder who has not demanded appraisal rights pursuant to Section 2.1.2(i) or who executes the agreement required by Section 8.1.8(e), by such election to not demand appraisal rights or execution, 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 the Outstanding Shares (Buying Parties to enter into this Agreement is based, in part, on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights representative to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign act on behalf of the applicable Company Securityholder or other partySecurityholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transaction Systems Architects Inc)
Securityholders’ Representative. (a) By virtue At the Closing, Rxxxxxx X. Xxxxxxxxx shall be constituted and appointed, without any further act of the approval and adoption of this Agreement by the requisite consent of any Securityholder, the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of Indemnifying Parties’ and the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissentersIndemnified Parties’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact representative (the “Securityholders’ Representative”) and, as such, shall serve as and have all powers as agent and attorney-in-fact for and on behalf of each Company Indemnifying Party or Company Indemnified Party, as the Company Securityholders case may be: (i) to give and receive notices and communicationscommunications on their behalf with respect to any matters related to this Agreement, the Escrow Agreements or the Securityholders’ Representative Fund Escrow Agreement; (ii) to enter into and perform under the Escrow Agreements and the Securityholders’ Representative Fund Escrow Agreement; (iii) to authorize payment to any Indemnified Party delivery of Indemnity Escrowed Shares or other property from the Indemnity Escrow Fund in satisfaction of claims by any to a Parent Indemnified Party, ; (vi) to object to such payments, deliveries and any claims set forth in any Parent Indemnification Certificate; (v) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimsany claim for indemnification pursuant to this Article VIII; (vi) to litigate, to assertmediate, negotiatearbitrate, enter into settlements and compromises ofdefend, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, enforce or take any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party actions and execute the Escrow Agreements and any such Company Securityholder, other documents that the Securityholders’ Representative deems advisable in each case relating to connection with enforcing any rights or obligations or defending any claim or action under this Agreement on behalf of the Company Indemnifying Parties and the Company Indemnified Parties; (vii) to sign receipts, consents or other documents in connection with the transactions contemplated hereby, Securityholders’ Representative’s duties hereunder; and (viii) to take any and all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, in each case, without having to seek or obtain the consent of any Securityholder. Notice or communications to or from the Securityholders’ Representative may resign at any time by providing written shall constitute notice of intent to resign to or from the Company SecurityholdersIndemnifying Parties and the Company Indemnified Parties. All actions to be taken by a Company Indemnified Party or Company Indemnifying Party, which resignation as the case may be, shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor taken solely by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
Appears in 1 contract
Securityholders’ Representative. (a) By Each Company Securityholder, by virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders other appointment authorization documentation (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under the Delaware Code) or the applicable laws of the State of California) by accepting any consideration payable hereunder shall be deemed to have agreed to appoint Fortis Advisors LLC Xxxxx Xxxxxx as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to act for the Company Securityholders as set forth herein, including, without limitation, with regard to matters pertaining to Sections 1.4, 2.3, 2.4, 2.5, 6.4, 6.6, 7.3, Article 9 and Article 10, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case communications relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment performance of the foregoing obligations of each Company Securityholder required by it pursuant to this Agreement or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by Each Company Securityholder agrees to receive correspondence from the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective TimeSecurityholders’ Representative, including in electronic form. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow FundClawback Shares. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or any member otherwise be unable to fulfill its responsibilities hereunder, the Company Securityholders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror of the Advisory Group and identity of such successor. Any such successor shall succeed the Closing and/or former Securityholders’ Representative as the Securityholders’ Representative hereunder. If, for any termination of reason, there is no Securityholders’ Representative at any time, all references in this Agreement and to the Securityholders’ Representative shall be deemed to refer to the Escrow AgreementParticipants. No bond shall be required of the Securityholders’ Representative in connection with its services hereunderRepresentative. The A decision, act, consent or instruction of the Securityholders’ Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Securityholders and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partySecurityholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cure Pharmaceutical Holding Corp.)
Securityholders’ Representative. (a) By virtue of by participating in the approval transactions contemplated hereby and adoption of this Agreement by receiving the requisite consent of benefits thereof, including the Company Stockholders or by right to receive the execution of a letter of transmittal by a Company Securityholderconsideration payable in connection with such transactions, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) Securityholder shall be deemed to have agreed to appoint Fortis Advisors approved the designation of, and hereby designates, Shareholder Representative Services LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) as the Company Securityholders’ representative and as their duly authorised agent, attorney and representative for the purposes of dealing with the Purchaser under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement and any communication to or from the Securityholders’ Representative under such agreements shall be deemed to be communication to or from all Company Securityholders. The Securityholders’ Representative shall be the only person entitled (on behalf of the Company Securityholders Securityholders) to give and receive notices and enforce rights, provide communications, make elections or provide consents under this Agreement, the Subscription Share Transfer Agreements, the Warrant Surrender Agreements, the Option Surrender Agreements and the Escrow Agreement (and in doing any of the forgoing it shall be doing so on behalf of all the Company Securityholders) and the Purchaser shall be entitled to authorize payment rely solely on such Securityholders’ Representative’s action or inaction in dealing with the Company Securityholders, notwithstanding any other communication whether in writing or otherwise, from any of the Company Securityholders. The Securityholders’ Representative is hereby further authorized to execute and deliver the Escrow Agreement as agent for the Company Securityholders and to exercise the Company Securityholders’ rights thereunder. The Securityholders’ Representative shall not be liable in any manner or for any reason to any Indemnified Party from Company Securityholders in respect of the Escrow Fund decisions, determinations or agreements made or consented to by the Securityholders’ Representative, or for any acts done or not done by the Securityholders’ Representative, under or in satisfaction of claims by any Indemnified Partyconnection with this Agreement, except 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 the extent that the Securityholders’ Representative was grossly negligent or engaged in wilful misconduct with respect to such claimsdecision, to assertdetermination, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim agreement or act done or not done by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for in connection with this Agreement. The Company Securityholders shall indemnify, defend and hold harmless the accomplishment Securityholders’ Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (together, “Securityholders’ Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the foregoing or (ii) specifically mandated by Securityholders’ Representative pursuant to the terms of this Agreement or and the Escrow Agreement. Such agency may be changed by Agreement provided that, in the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the event that any such Securityholders’ Representative may resign at Losses or any time by providing written notice of intent portion thereof is finally adjudicated to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor have been primarily caused by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation gross negligence or removal wilful misconduct of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of its successors or assigns, the Securityholders’ Representative will reimburse the Company Securityholders the amount of such Securityholders’ Representative Losses attributable to such gross negligence or wilful misconduct. If not paid directly to the Securityholders’ Representative by the Company Securityholders, any such losses, liabilities or expenses may be recovered by the Securityholders’ Representative from the Escrow Expenses Amount and from the funds in connection with the Escrow Fund otherwise distributable to Company Securityholders following the termination of the Escrow Period pursuant to the terms hereof and the Escrow Agreement at the time of distribution; provided that while this clause allows the Securityholders’ Representative to be paid from the Escrow Fund, this does not relieve the Company Securityholders from their obligation to promptly pay such losses, liabilities or expenses, nor does it prevent the Securityholders Representative from seeking any remedies available to it at Law or otherwise. If the Securityholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its services responsibilities hereunder, the Company Securityholders shall (by consent of those persons entitled to at least a majority of the purchase price paid to all Company Securityholders), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Securityholders’ Representative and immediately thereafter notify Purchaser of the identity of such successor. Any such successor shall succeed the former Securityholders’ Representative as the Securityholders’ Representative hereunder. The If for any reason there is no Securityholders’ Representative at any time, all references herein to the Securityholders’ Representative shall be entitled to: (i) rely upon deemed to refer to the Payment 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 Company Securityholders. Each Company Securityholder or other party.hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form;
Appears in 1 contract
Securityholders’ Representative. (a) By virtue At the Closing, by the adoption of the approval Merger, and adoption of this Agreement by receiving the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholderbenefits thereof, including any consideration payable hereunder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) Securityholder shall be deemed to have agreed to appoint approved the appointment of, and Fortis Advisors LLC shall be constituted and appointed as its the Securityholders’ Representative. The Securityholders’ Representative shall be the exclusive representative, agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders for all purposes in connection with this Agreement and the agreements ancillary hereto, including to (i) execute, as the Securityholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the transactions contemplated hereby, (ii) give and receive notices notices, instructions and communicationscommunications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Securityholder, to or from Buyer (on behalf of itself or any other Buyer Indemnified Party) relating to this Agreement or any of the transactions contemplated hereby and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Securityholder individually), (iii) review, negotiate and agree to and authorize payment Buyer to any Indemnified Party reclaim an amount of cash from the Indemnity Escrow Fund, the Specified Matters Escrow Fund or the Adjustment Escrow Fund in satisfaction of claims asserted by Buyer (on behalf of itself or any other Buyer Indemnified Party, including by not objecting to such claims) pursuant to Section 8, (iv) object to such paymentsclaims pursuant to Section 2.17 or Section 8, to (v) consent or agree to, negotiate, enter into into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with judgments, orders or decrees of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, resolve any other claim such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated hereby by settlement or otherwise, and take or forego any Indemnified Party against or all actions permitted or required of any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Securityholders, (vii) consent or (ii) specifically mandated by the agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or the Escrow Agreement. Such agency may be changed by benefits to the Company Securityholders holding a majority-in-interest (other than with respect to the payment of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior consideration payable hereunder to the Effective TimeCompany Securityholders) in accordance with the terms hereof and in the manner provided herein, (viii) pursuant to Section 2.17, review, negotiate, object to, accept or agree to the calculations set forth in the Buyer Closing Statement and (ix) take all actions necessary or appropriate in the judgment of the Securityholders’ Representative hereunder, under the Escrow Agreement or under the Securityholders’ Representative Engagement Agreement for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance and (x) utilize the Expense Fund in connection with any of the foregoing. Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the Company Securityholders, except as expressly provided herein and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. Buyer, Merger Subs and their respective Affiliates (including after the Effective Time, the First Step Surviving Corporation and after the Second Effective Time, the Final Surviving Entity) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Securityholders’ Representative and treat such Securityholders’ Representative as the duly appointed attorney-in-fact of each Company Securityholder and has having the duties, power and authority provided for in this Section 10.2. Each Company Securityholder shall be bound by all actions taken and documents executed by the Securityholders’ Representative in connection with this Section 10.2, and Buyer and other Buyer Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Securityholders’ Representative. The Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) with no less than thirty (30) calendar days following delivery of such days’ prior written notice or (B) the appointment of a successor by the holders of a majority as provided for in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative Engagement Agreement. The Person serving as the Securityholders’ Representative may be removed or any member of replaced from time to time, or if such Person resigns from its position as the Advisory Group and Securityholders’ Representative, then a successor may be appointed, by the Closing and/or any termination of this Agreement and the Escrow AgreementCompany Securityholders collectively having a Pro Rata Share greater than 50% upon not less than thirty (30) days’ prior written notice to Buyer. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Limelight Networks, Inc.)
Securityholders’ Representative. (a) By virtue The Indemnifying Securityholders will authorize, designate and appoint, as part of the their approval and adoption of this Agreement by and the requisite consent of transactions contemplated herein, the Company Stockholders or by Securityholders’ Representative to act as the execution of a letter of transmittal by a Company Securityholdersole and exclusive agent, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf representative of each of the Company Indemnifying Securityholders by the consent of the Indemnifying Securityholders and as such is hereby authorized and directed to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary take any and all actions (including without limitation executing and delivering any documents, incurring any costs and expenses for the account of the Indemnifying Securityholders and making any and all determinations required by this Agreement) which may be required in carrying out his, her or appropriate in its duties under this Agreement, (ii) bring any and all claims against Parent or its Affiliates for breach of any of their respective representations, warranties, obligations or covenants or other rights of the judgment of Indemnifying Securityholders under this Agreement, (iii) exercise such other rights, power and authority as are authorized, delegated and granted to the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of under this Agreement or in connection with the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares transactions contemplated hereby and thereby, and (on an iv) exercise such rights, power and authority as converted to Company Common Stock basis) immediately prior are incidental to the Effective Timeforegoing. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice shall have no obligation to act on behalf of intent to resign to the Company Indemnifying Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority except as expressly provided herein and in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required , and for purposes of clarity, there are no obligations of the Securityholders’ Representative in connection with its services hereunderany Ancillary Agreement, schedule, exhibit or the Disclosure Schedule. The Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Securityholders’ Representative consistent therewith shall be entitled toabsolutely and irrevocably binding on each Indemnifying Securityholder as if such Indemnifying Securityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Indemnifying Securityholder’s individual capacity. The powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (i) rely upon are coupled with an interest and shall be irrevocable and survive the Payment Scheduledeath, incompetence, bankruptcy or liquidation of any Indemnifying Securityholder and shall be binding on any successor thereto, and (ii) rely upon shall survive the delivery of an assignment by any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf Indemnifying Securityholder of the applicable Company Securityholder whole or other partyany fraction of his, her or its interest in the Escrow Fund.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Juno Therapeutics, Inc.)
Securityholders’ Representative. (a) By virtue of the approval The Securityholders’ Representative shall have full power and adoption of authority to take all actions under this Agreement and the Escrow Agreement that are to be taken by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for . The Securityholders’ Representative shall take any and on behalf of the Company Securityholders to give all actions which he or she believes are necessary or appropriate under this Agreement and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by Agreement, including, without limitation, executing the Escrow Agreement as Securityholders’ Representative, giving and receiving 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder notice or by any such Company Securityholder against any Indemnified Party instruction permitted or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to required under this Agreement or the transactions contemplated herebyEscrow Agreement by the Securityholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to take be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other actions that are either (i) necessary obligations of or appropriate in the judgment of incurred by the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of in connection with this Agreement or the Escrow Agreement, defending all claims arising pursuant to Section 3.5 (an “NWC Claim”), defending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its agents regarding such claims, dealing with Parent and the Escrow Agent under this Agreement, taking any all other actions specified in or contemplated by this Agreement or the Escrow Agreement, and engaging counsel, accountants or other representatives in connection with the foregoing matters. Such agency may be changed by Without limiting the Company Securityholders holding a majority-in-interest generality of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent shall have the full power and authority to resign to interpret all the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities terms and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement. No bond shall be required of Agreement and to consent to any amendment hereof or thereof in his or her capacity as Securityholders’ Representative; provided, however, the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon may not consent to any amendment of this Agreement or the Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume Escrow Agreement that would increase the liability of a signatory has proper authorization to sign on behalf Securityholder without the prior written consent of the applicable Company Securityholder or other partysuch Securityholder.
Appears in 1 contract
Securityholders’ Representative. (a) By virtue of obtaining the approval Company Stockholder Approval or the execution and adoption delivery by a Securityholder of this a Support Agreement by the requisite consent and/or Stockholder Transmittal Letter, Option Holder Transmittal Letter or Warrant Cancellation Agreement, as applicable, and without any further action of any of the Company Stockholders Securityholders or by the execution of a letter of transmittal by a Company SecurityholderCompany, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall Securityholder will be deemed to have agreed consented to appoint Fortis Advisors LLC the appointment of the Securityholders’ Representative as its the exclusive agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of each such Securityholder, and the Company Securityholders taking by the Securityholders’ Representative of any and all actions and the making of any decisions required or permitted to give and receive notices and communicationsbe taken by the Securityholders’ Representative under this Agreement, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction Agreement and the other Transaction Documents, including the exercise of claims by the power to (a) execute and deliver this Agreement and the other Transaction Documents and any Indemnified Partyamendment hereof or thereof or waiver hereunder or thereunder, (b) agree to, negotiate, enter into compromises of and comply with the decision of the Independent Accounting Firm with respect any adjustments to object the Merger Consideration pursuant to such paymentsSection 1.14, to (c) agree to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with orders Orders of courts and awards of arbitrators with respect to such claimsany Claims, (d) object to assertand resolve any Claims, negotiate(e) bind the Escrow Participants to the terms of the Escrow Agreement, enter into settlements (f) give and compromises of, receive notices and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating communications pursuant to this Agreement, the Escrow Agreement or and the transactions contemplated herebyother Transaction Documents, including the delivery of written instructions to the Escrow Agent, (g) authorize delivery of cash from either Escrow Account in satisfaction of any Claims and upon release to take all other actions that are either the Escrow Participants, (h) authorize the delivery of cash from the Reserve Fund to the Escrow Participants and (i) take all actions necessary or appropriate desirable in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by and all of the terms other terms, conditions and limitations of this Agreement or Agreement, the Escrow Agreement and the other Transaction Documents. Accordingly, the Securityholders’ Representative has unlimited authority and power to act on behalf of each Securityholder with respect to this Agreement. Such agency may be changed by , the Company Securityholders holding a majority-in-interest Escrow Agreement and the other Transaction Documents and the disposition, settlement or other handling of all Claims, rights or obligations arising from and taken pursuant to this Agreement, the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to Escrow Agreement and the Effective Timeother Transaction Documents. Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the Securityholders, except as expressly provided herein, and for purposes of clarity, except as set forth herein and in the Escrow Agreement, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Representative Group (as defined below) hereunder (i) are coupled with an interest and shall be irrevocable and survive the bankruptcy or liquidation of any Securityholder and 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, if any, in any Merger Consideration, the Escrow Amounts, if any, and/or each Milestone Payment, if any. The Securityholders and their successors will be bound by all actions taken by the Securityholders’ Representative in connection with this Agreement, the Escrow Agreement, the Representative Engagement Agreement and the other Transaction Documents as if expressly confirmed and ratified in writing by the Securityholders, and Parent shall be entitled to rely on any action or decision of the Securityholders’ Representative. All defenses that may be available to any Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the other Transaction Documents are waived. The Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall and may be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice removed or (B) the appointment of a successor replaced by the holders of a majority in interest of the Escrow FundAdvisory Group. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group (as defined below) and the Closing and/or any termination of this Agreement and or the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacira Pharmaceuticals, Inc.)
Securityholders’ Representative. (a) By Each Company Securityholder, by virtue of the approval of the Merger and adoption of this Agreement by the requisite consent and without any further action of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each any of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Company, hereby irrevocably constitutes and appoints Fortis Advisors LLC as his, her or its sole, exclusive, true and lawful agent and attorney-in-fact (the “Securityholders’ Representative”), with full power of substitution to act in such Company Securityholder’s name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement or the Escrow Agreement, and to act on such Company Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents, on such Company Securityholder’s behalf, as the Securityholders’ Representative deems necessary or appropriate in connection with the transactions contemplated by this Agreement or the Escrow Agreement, including the power: (i) for to execute and deliver this Agreement and any and all amendments, waivers or modifications hereof; (ii) to waive any condition to the obligations of such Company Securityholder to consummate the transactions contemplated by this Agreement; (iii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Company Securityholder that the Securityholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Escrow Agreement; (iv) to receive on behalf of, and to distribute (after payment of (A) any unpaid expenses chargeable to the Company Securityholders or the Company prior to give the Closing in connection with the transactions contemplated by this Agreement, and receive notices and communications(B) amounts payable by the Company Securityholders pursuant to Section 1.5), all amounts payable to authorize payment such Company Securityholder under the terms of this Agreement or the Escrow Agreement; (v) with respect to any Indemnified Party from the Escrow Fund in satisfaction of claims for indemnification made by any Indemnified PartyParent hereunder, to agree to, object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration litigation of and comply with orders of courts and awards of arbitrators courts with respect to such claims, ; and (vi) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders do or refrain from doing any further act or deed on behalf of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party as is assigned, delegated or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating charged to this Agreement the Securityholders’ Representative or that the transactions contemplated hereby, and to take all other actions that are either (i) Securityholders’ Representative otherwise deems necessary or appropriate in its sole discretion relating to the judgment subject matter of this Agreement, the Escrow Agreement or the Securityholders’ Representative for the accomplishment of the foregoing engagement agreement, as fully and completely as such Company Securityholder could do if personally present. All such actions set forth or (iidescribed in this Section 1.14(a) specifically mandated by the terms of will be deemed to be facts ascertainable outside this Agreement or the Escrow Agreement. Such agency may and will be changed by binding on the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective TimeSecurityholders. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice shall have no obligation to act on behalf of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority except as expressly provided herein and in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of Agreement the Securityholders’ Representative or any member engagement agreement, and for purposes of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required clarity, there are no obligations of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon any ancillary agreement, schedule, exhibit or the Payment Company Disclosure 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 Company Securityholder or other party.
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Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders Each Effective Time Holder (other than (i) such Company Stockholders, if any, who have perfected appraisal or dissenters’ or appraisal rights under Delaware Law or the applicable laws California Law, and (ii) Acquiror, in any capacity other than as a Company Securityholder under this Agreement) by virtue of the State approval and adoption of California) this Agreement or other appointment authorization documentation, or by accepting any consideration payable hereunder, shall be deemed to have agreed to appoint Fortis Advisors LLC LLC, a Delaware limited liability company, as the Securityholders’ Representative and to be its agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders Effective Time Holders to act for the Effective Time Holders with regard to matters pertaining to the Merger, this Agreement and the transactions contemplated hereby, including Sections 1.17, 1.18, 1.19, 5.4(b), 5.5(b), 5.8, 7.3, ARTICLE VIII and ARTICLE IX, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund Person in satisfaction of claims by any Indemnified PartyPerson (including from the Indemnity Escrow Account), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party Person against any Company Securityholder Effective Time Holder or by any such Company Securityholder Effective Time Holder against any Indemnified Party Person or any dispute between any Indemnified Party Person and any such Company SecurityholderEffective Time Holder, in each case relating to this Agreement or the transactions contemplated hereby, hereby and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement; provided, however, that the Securityholders’ Representative shall have no obligation to act on behalf of the Effective Time Holders, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Effective Time Holders that require the action of the Securityholders’ Representative in any ancillary agreement or the Company Disclosure Letter. Each Effective Time Holder agrees to receive correspondence from the Securityholders’ Representative, including in electronic form. Such agency may be changed by the Company Securityholders holding Effective Time Holders upon written notice signed by the Effective Time Holders representing at least a majority-in-majority in interest of all Effective Time Holders (based on their Pro Rata Share of the Outstanding Shares Merger Consideration) (on an as converted to Company Common Stock basisthe “Majority Effective Time Holders”) immediately prior to the Effective Timefrom time-to-time. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company SecurityholdersEffective Time Holders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow FundMajority Effective Time Holders. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of If the Securityholders’ Representative shall be removed, resign or otherwise be unable to fulfill its responsibilities hereunder, the Majority Effective Time Holders shall appoint a successor to the Securityholders’ Representative, and shall immediately thereafter notify Acquiror the identity of such successor. Any such successor shall succeed the former the Securityholders’ Representative as the Securityholders’ Representative hereunder. If for any member of reason there is no Securityholders’ Representative at any time, all references herein to the Advisory Group and Securityholders’ Representative shall be deemed to refer to the Closing and/or any termination of this Agreement and the Escrow AgreementMajority Effective Time Holders. No bond shall be required of the Securityholders’ Representative in connection with its services hereunderRepresentative. The A decision, act, consent or instruction of the Securityholders’ Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Effective Time Holders and shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partyEffective Time Holders.
Appears in 1 contract
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent their execution of the Company Stockholders or by the execution Written Consents and Letters of a letter of transmittal by a Company SecurityholderTransmittal and as more specifically provided for therein, each of the holders of Company Securityholders Shares and each of the holders of CEA Shares (other than such Dissenting Shares and Company StockholdersShares or CEA Shares held in the Company’s or CEA’s treasury, as the case may be, if any) and CEA Options shall approve and confirm, who have perfected dissenters’ in accordance with the terms set forth herein, his, her or appraisal rights under Delaware or the applicable laws its irrevocable appointment of the State of California) shall be deemed to have agreed to appoint Fortis Advisors CEA Rep, LLC as his, her or its agent sole and exclusive agent, representative and attorney-in-fact (for the “purposes of this Agreement and the Escrow Agreement. The Securityholders’ Representative”) Representative shall have the authority to act for and on behalf of the Company Securityholders Former Securityholders, including, without limitation, to give and receive notices and communications, to authorize payment act on behalf of the Former Securityholders with respect to any Indemnified Party from the Escrow Fund Agreement and any other matters arising under this Agreement, to authorize delivery to Parent of any funds and property in its possession or in the possession of the Escrow Agent in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand commence, prosecute, participate in, settle, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings, and to comply with orders of courts and awards of courts, mediators and arbitrators with respect to such claimssuits, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder claims or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated herebyproceedings, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by foregoing. The Securityholders’ Representative shall for all purposes be deemed the terms sole authorized agent of this Agreement or the Escrow AgreementFormer Securityholders until such time as the agency is terminated. Such agency may be changed by the Company Former Securityholders holding a majority-in-interest of the Outstanding Shares from time to time upon not less than thirty (on an as converted 30) days prior written notice to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoingParent; provided, however, that the Securityholders’ Representative may resign not be removed unless holders of at any time by providing written notice of intent least two-thirds interest in the Merger Consideration agree to resign such removal and to the Company identity of the substituted Securityholders, which resignation shall ’ Representative. Any vacancy in the position of Securityholders’ Representative may be effective upon filled by approval of the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders recipients of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow AgreementMerger Consideration. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Representative, and the Securityholders’ Representative shall be entitled to: (i) rely upon not receive compensation for its services. Notices or communications to or from the Payment Schedule, (ii) rely upon any signature believed by it Securityholders’ Representative shall constitute notice to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf or from each of the applicable Company Securityholder or other partyFormer Securityholders during the term of the agency.
Appears in 1 contract
Securityholders’ Representative. (a) By virtue of the approval of the Merger and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of Indemnifying Parties and/or entering into a letter of transmittal by a Company SecurityholderJoinder Agreement, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) Indemnifying Parties shall be deemed to have agreed to appoint Fortis Advisors LLC Xxxx Xxxxxx as its agent and attorney-in-fact (as the “Securityholders’ Representative”) Representative for and on behalf of the Company Securityholders Indemnifying Parties to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder Indemnifying Party or by any such Company Securityholder Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Company SecurityholderIndemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing foregoing, or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Securityholders’ Representative may not be removed or any change to the agency made unless holders of a majoritytwo-in-thirds interest of the Outstanding Shares (on an as converted Escrow Fund agree to Company Common Stock basis) immediately prior such removal and to the Effective Timeidentity of the substituted agent or such change. Notwithstanding the foregoing, a vacancy in the position of Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor filled by the holders of a majority two-thirds in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Representative, and the Securityholders’ Representative shall be entitled to: (i) rely upon not receive any compensation for its services. Notices or communications to or from the Payment Schedule, (ii) rely upon any signature believed by it Securityholders’ Representative shall constitute notice to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of or from the applicable Company Securityholder or other partyIndemnifying Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Advent Software Inc /De/)
Securityholders’ Representative. (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders or by the execution of and, if applicable, specific authorization set forth in a letter of transmittal by a Company SecurityholderJoinder Agreement, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of CaliforniaLaw) shall be deemed to have agreed to appoint Fortis Advisors LLC as its the Securityholders’ Representative as the exclusive agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of the Company Securityholders to (i) amend, modify, or supplement this Agreement following the Effective Time as contemplated in Section 9.11, (ii) give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to (iii) 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 claimsindemnification claims made by Parent Indemnified Persons hereunder (including matters with respect to Earn-out Payments), (iv) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party Person against any Company Securityholder or by any such Company Securityholder against any Parent Indemnified Party Person or any dispute between any Parent Indemnified Party Person and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and (v) to take all other actions that are either (ix) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or otherwise in connection with this Agreement, the Escrow Agreement and the Securityholders’ Representative Engagement Agreement or (iiy) specifically mandated by the terms of this Agreement. Notwithstanding the foregoing, the Securityholders’ 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 Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective TimeDisclosure Schedule. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of its intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of at least a majority in interest of the Escrow Fundissued and outstanding shares of Company Capital Stock immediately prior to the Effective Time. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyRepresentative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Merit Medical Systems Inc)
Securityholders’ Representative. (a) By virtue of the its approval and adoption of this Agreement by the requisite consent of the Company Stockholders Merger or by submission of the execution of a letter of transmittal by a Company SecurityholderTransmittal Documentation (as applicable), each of Securityholder designates and appoints the Company Securityholders (other than Securityholders’ Representative as such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its Securityholder’s agent and attorney-in-fact (with full power and authority to take any and all actions that the “Securityholders’ Representative”) Representative believes are necessary or appropriate under this Agreement for and on behalf of the Company Securityholders Securityholders, as fully as if each Securityholder was acting on its own behalf, including full power and authority on such Securityholder’s behalf (i) to give and receive notices and communicationscommunications and to accept service of process on behalf of such Securityholder, (ii) to authorize payment authorize, negotiate, compromise, settle, agree to and otherwise handle any Indemnified Party from adjustments to the Escrow Fund in satisfaction of claims by any Indemnified PartyMerger Consideration under this Agreement, to object to such payments, (iii) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders judgments or order of courts or other Governmental Authorities and awards of arbitrators with respect to such claimsarbitrators, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim claims by any Indemnified Party Buyer Indemnitee against any Company Securityholder or by any such Company Securityholder against any Indemnified Party Buyer Indemnitee, or any other dispute between any Indemnified Party Buyer Indemnitee and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated herebyby this Agreement, (iv) to consummate the transactions contemplated herein, (v) to pay such Securityholder’s portion of the Transaction Expenses (whether incurred on or after the date hereof) and to retain amounts from the Merger Consideration for the purpose of paying expenses incurred by it pursuant to matters arising out of this Agreement or satisfying any post-Closing adjustment(s) to the Merger Consideration, (vi) to disburse any funds received hereunder to each Securityholder, (vii) to execute and deliver any Certificates and execution of such further instruments as may be delivered to Buyer, (viii) to interpret all of the terms and provisions of this Agreement and to consent to, execute and deliver any amendment or waiver hereof on behalf of each such Securityholder, (ix) to take all other actions to be taken by or on behalf of such Securityholder in connection herewith, (x) to authorize payments to be made with respect to this Agreement, (xi) to deal with Buyer under this Agreement with respect to all matters arising under this Agreement, (xii) to take any and all other actions specified in or contemplated by this Agreement, and to engage counsel, accountants or other agents in connection with the foregoing matters, (xiii) to obtain reimbursement (whether or not out of the Securityholders’ Rep Expense Fund) as provided for herein for all out-of-pocket fees and expenses and other obligations of, or incurred by, the Securityholders’ Representative in connection with this Agreement and (xiv) to take all actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) are specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted Notices or communications to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, or from the Securityholders’ Representative may resign at any time by providing written will constitute notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest from each of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of Securityholders for all purposes under this Agreement and except where the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partycontext otherwise requires.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SCG Financial Acquisition Corp.)
Securityholders’ Representative. (a) By virtue voting in favor of the approval and adoption of this Agreement by Agreement, the requisite consent approval of the Company Stockholders principal terms of the Merger, and the consummation of the Merger or by participating in the execution of a letter of transmittal by a Company SecurityholderMerger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Indemnifying Person hereby appoints and constitutes Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) Representative for and on behalf of the Company Securityholders Indemnifying Persons and as his, her or its attorney-in-fact and exclusive agent to execute and deliver this Agreement, the Escrow Agreement and the Paying Agent Agreement (collectively, the “Representative Agreements”) and for all other purposes hereunder and thereunder and to take any and all actions and make any and all decisions required or permitted to be taken or made by the Securityholders’ Representative under the Representative Agreements and the Securityholders’ Representative Engagement Agreement, including the exercise of the right to: (i) give and receive notices and communications, communications under the Representative Agreements; (ii) authorize delivery to authorize payment to any Indemnified Party Parent of cash from the Escrow Fund in satisfaction of claims by any Indemnified Partyaccordance with Section 3.6, Article XI and the Escrow Agreement; (iii) determine the amounts payable (if any) to object each Company Stockholder, Company Warrantholder and Bonus Plan Participant pursuant to such paymentsSections 3.6(e), to 11.5 and 13.3, (iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with court orders of courts and awards of arbitrators with respect to such claims, to assertdisputes under any Representative Agreement; (v) agree to, negotiate, enter into settlements and compromises of, provide amendments and demand arbitration supplements to and comply with orders waivers in respect of courts any Representative Agreement; and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to (vi) take all other actions that are either (i) necessary or appropriate in the good faith judgment of the Securityholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Timeforegoing. Notwithstanding the foregoing, the Securityholders’ Representative shall have no obligation to act on behalf of the Indemnifying Persons, except as expressly provided in the Representative Agreements and in the Securityholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Securityholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedules. The Securityholders’ Representative may resign at any time by providing written notice and the identity of intent to resign to the Company Securityholders’ Representative may be changed, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of and a successor Securityholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Securityholders’ Representative) by the holders of a majority in interest of Advisory Group, and any such successor shall succeed the Escrow FundSecurityholders’ Representative as Securityholders’ Representative hereunder. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunderRepresentative. The From and after the Effective Time, a decision, act, consent or instruction of the Securityholders’ Representative shall be entitled to: (i) rely final, binding and conclusive upon the Payment 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 Company Securityholder or other partyeach Indemnifying Person.
Appears in 1 contract
Securityholders’ Representative. (a) By virtue Each Seller hereby irrevocably designates and appoints Pro-Edge, LP. as, and Pro-Edge, LP. hereby irrevocably accepts the designation as and agrees to be, the representative of each Seller and the approval and adoption “Securityholders Representative” for purposes of this Agreement by Agreement. The Securityholders Representative is hereby designated as the requisite consent of the Company Stockholders or by the execution of a letter of transmittal by a Company Securityholder, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint Fortis Advisors LLC as its attorney in fact and agent and attorney-in-fact (the “Securityholders’ Representative”) for and on behalf of each Seller and his, her or its respective heirs, successors and assigns with respect to the Company exercise of the power to take all actions and make all decisions on behalf of each Seller under this Agreement and any other document or agreement delivered in connection herewith, including without limitation, decisions and actions with respect to payments and adjustments under Article II, with respect to satisfaction and waiver of closing conditions under Article IX, and with respect to claims for indemnification under Article X. The Securityholders Representative also shall have the power to give and receive all notices and communicationscommunications to be given or received by the Sellers, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims 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 such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between of them, under this Agreement and to receive service of process for the Sellers, or any Indemnified Party and any such Company Securityholderof them, in each case relating to connection with any claims under this Agreement or the transactions contemplated hereby, and to take all actions on behalf of the Sellers, or any of them, necessary to settle, pay or take any other actions that are either (i) necessary with respect to the Sellers’ or appropriate any Seller’s indemnification obligations under Article X. Each Seller shall be bound by all actions taken and documents executed by the Securityholders Representative in connection with this Agreement. Notices or communications to or from the judgment Securityholders Representative shall constitute notice to or from each Seller. In performing the functions specified in this Agreement, the Securityholders Representative may act upon any instrument or other writing believed by the Securityholders Representative in good faith to be genuine and to be signed or presented by the proper Person and shall not be liable in connection with the performance by it of its duties pursuant to the provisions of this Agreement. The Securityholders Representative shall be indemnified and held harmless by the Sellers, jointly and severally, and in accordance with each Seller’s Allocable Portion, from and against any Losses incurred on the part of the Securityholders’ Securityholders Representative for and arising out of or in connection with the accomplishment acceptance or administration of its duties hereunder. Without limiting the foregoing or (ii) specifically mandated by the terms generality of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoing, the Securityholders’ Securityholders Representative may resign at any time by providing written notice of intent shall have full power and authority to resign to interpret all the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities terms and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination provisions of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other partyall Sellers and their respective heirs, successors and assigns.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Intrexon Corp)
Securityholders’ Representative. (a) By virtue voting in favor of the approval and adoption of this Agreement by Agreement, the requisite consent approval of the Company Stockholders Merger and the consummation of the Merger, or by participating in the execution of a letter of transmittal by a Company SecurityholderMerger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) Indemnifying Person shall be deemed to have agreed to appoint Fortis Advisors LLC approved the designation of, and hereby designates as its of the date hereof, Xx. Xxxx as the agent and attorney-in-attorney in fact (of such Indemnifying Person and as the “Securityholders’ Representative”) Representative for and on behalf of the Company Securityholders such Indemnifying Person to give and receive notices and communications in connection with this Agreement and related matters, including in connection with claims for indemnification under Article XI, and for all other purposes hereunder, including to give and receive notices and communications, ; to authorize payment delivery to any Indemnified Party from Parent of the applicable portion of the Escrow Fund in satisfaction of claims for indemnification by any Indemnified Party, Parent; to object to such payments, deliveries; 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 to, such claims, ; to assertagree to, negotiate, enter into settlements and compromises of, provide amendments and demand arbitration supplements to and comply with orders waivers in respect of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or and the transactions contemplated hereby, Escrow Agreement; and to take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing any or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Securityholders holding a majority-in-interest all of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Timeforegoing; and Xx. Notwithstanding the foregoing, the Securityholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Securityholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of Xxxx hereby accepts such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreementdesignation. No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative in connection with its services hereundershall receive no compensation for his services. The Securityholders’ Representative may resign at any time. A new Securityholders’ Representative may be appointed at any time by Xx. Xxxx, such appointment to become effective upon the written acceptance thereof by the new Securityholders’ Representative. Written notice of any resignation or appointment of the Securityholders’ Representative shall be entitled to: (i) rely upon delivered by the Payment Schedule, (ii) rely upon any signature believed by it Securityholders’ Representative to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Securityholder or other partyParent promptly after such action is taken.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Par Pharmaceutical Companies, Inc.)
Securityholders’ Representative. Xxxxxxx Xxxxxx (asuch person ------------------------------- and any successor or successors being the "Securityholders' Representative") By virtue of ------------------------------- shall act as the approval and adoption of this Agreement by the requisite consent representative of the Company Stockholders or by the execution of a letter of transmittal by a Company SecurityholderSecurityholders, each of the Company Securityholders (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) and shall be deemed authorized to have agreed to appoint Fortis Advisors LLC as its agent and attorney-in-fact (the “Securityholders’ Representative”) for and act on behalf of the Company Securityholders and to give take any and receive notices and communicationsall actions required or permitted to be taken by the Securityholders' Representative under this Agreement or the Escrow Agreement, to authorize payment with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party from for indemnification against the Escrow Fund pursuant to this Article IX and with respect to any actions to be taken by the Securityholders' Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of the Escrow Amount to a Parent Indemnified Party in satisfaction of claims by any a Parent Indemnified Party, to object to such payments, to (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 such claims, to assert, negotiate, enter into settlements claims and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Securityholder or by any such Company Securityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to (iii) take all other actions that are either (i) necessary or appropriate in the judgment of the Securityholders’ ' Representative for the accomplishment of the foregoing or (ii) specifically mandated foregoing). The Company Securityholders shall be bound by all actions taken by the terms Securityholders' Representative in its capacity thereof. The Securityholders' Representative shall promptly, and in any event within ten (10) business days, provide written notice to the Company Securityholders of any action taken on behalf of them by the Securityholders' Representative pursuant to the authority delegated to the Securityholders' Representative under this Section 9.04. The Securityholders' Representative shall at all times act in his or her capacity as Securityholders' Representative in a manner that the Securityholders' Representative believes to be in the best interest of the Company Securityholders. Neither the Securityholders' Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Securityholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Securityholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. Such agency may be changed by As to any matters not expressly provided for in this Agreement or the Company Securityholders holding a majority-in-interest of the Outstanding Shares (on an as converted to Company Common Stock basis) immediately prior to the Effective Time. Notwithstanding the foregoingEscrow Agreement, the Securityholders’ ' Representative may resign at shall not exercise any time discretion or take any action. Each Company Stockholder severally shall indemnify and hold harmless and reimburse the Securityholders' Representative from and against such Company Stockholder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by providing written notice the Securityholders' Representative arising out of intent or resulting from any action taken or omitted to resign be taken by the Securityholders' Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Securityholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the Escrow Agreement, (i) the Securityholders' Representative is not authorized to, and shall not, accept on behalf of any Company Stockholder any merger consideration to which such Company Stockholder is entitled under this Agreement and (ii) the Securityholders' 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 Stockholder unless the Securityholders' Representative is expressly authorized to do so in a writing signed by such Company Stockholder. In all matters relating to the Escrow Fund under this Article IX, the Securityholders' Representative shall be the only party entitled to assert the rights of the Company Securityholders, which resignation and the Securityholders' Representative shall perform all of the obligations of the Company Securityholders hereunder. The Parent Indemnified Parties shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities entitled to rely on all statements, representations and rights to indemnification included in this Section 8.6(b) shall survive the resignation or removal decisions of the Securityholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Securityholders’ Representative in connection with its services hereunder. The Securityholders’ Representative shall be entitled to: (i) rely upon the Payment 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 Company Securityholder or other party' Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Netopia Inc)
