Securityholders’ Representative. (a) ML Seller Rep LLC will act as Securityholders’ Representative for all purposes under this Agreement. On the date of this Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true and lawful agent, representative and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf of the Securityholders required or permitted under or in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07. (b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion of the Securityholders’ Representative to accomplish any of the foregoing. As the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIII. (c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith. (d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative. (e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep LLC Each Securityholder, by participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, will act as irrevocably be deemed to have appointed Wolverine Securityholders’ Representative for all purposes under this Agreement. On Representative, LLC, as of the date of this AgreementEffective Time, as the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true and lawful agent, exclusive representative and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and fact for such Securityholder for all actions on behalf of the Securityholders required or permitted under or purposes in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any agreements ancillary hereto (including the full power and authority on such actions shall be binding on each such holder and shall include the following: Securityholder’s behalf): (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holderconsummate the Transactions; (ii) to give endorse and accept communications and notices on behalf deliver any certificates or instruments of such holderassignment as Parent will reasonably request; (iii) to defendexecute and deliver on behalf of such Securityholder any amendment, waiver, ancillary agreement or other document that the Securityholders’ Representative deems necessary or appropriate; (iv) to give and receive notices and communications to or from Parent or the Surviving Corporation relating to this Agreement, the Merger or any of the transactions and other matters contemplated hereby (except to the extent that this Agreement expressly contemplates that any such notice or communication must be given or received by a Securityholder individually); (v) to make, administer and resolve disputes; (vi) to consent or agree to, negotiate, agree toenter into, enter into or, if applicable, prosecute or defend, settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02claims; (vii) to receive service provide any consents or agreements hereunder, including with respect to any proposed settlement of process on behalf of such holder in connection with any claims under or to any amendment to this Agreement or any related document or instrumentAgreement; and (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. As Each Securityholder agrees that such appointment is coupled with an interest, is therefor irrevocable and will survive the representative death, incapacity, bankruptcy, dissolution or liquidation of such holdersSecurityholder. All decisions and actions (including the execution of any agreement or document) by the Securityholders’ Representative on behalf of any Securityholder (to the extent authorized by this Agreement) will be binding upon such Securityholder, and no such Securityholder will have the right to object, dissent, protest or otherwise contest the same. Each Securityholder agrees that Parent will be entitled to rely on any action taken by the Securityholders’ Representative, on behalf of such Securityholder, pursuant to this Section 8.16, and that each such action will be binding on each Securityholder as fully as if such Securityholder had taken such action. No bond will be required of the Securityholders’ Representative.
(b) Notwithstanding Section 8.16(a), in the event that the Securityholders’ Representative, upon the advice of legal counsel, is of the opinion that he requires further authorization from Securityholders on any matters concerning this Agreement or the Transactions, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall will be entitled to reimbursement seek such further authorization from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order Securityholders prior to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIIacting on their behalf.
(c) The Securityholders’ Representative shall may resign from its capacity as the Securityholders’ Representative at any time by written notice delivered to Parent. If there is a vacancy at any time in the position of the Securityholders’ Representative for any reason, such vacancy will be filled by the holders of a majority in interest of the former Company Shareholders upon not less than three days’ prior written notice to Parent, in which case the references to the Securityholders’ Representative will include the replacement.
(d) All acts of the Securityholders’ Representative hereunder in its capacity as such will be deemed to be acts on behalf of the Securityholders and not of the Securityholders’ Representative individually. The Securityholders’ Representative will not be liable to the Securityholders in connection with the Securityholders’ Representative’s services pursuant to this Agreement and any Securityholder agreements ancillary hereto, for any liability of any kind, including any liability of any Securityholder, or otherwise or for any error of judgment, or any act done or step taken or omitted to be taken as by it in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except in the case of the Securityholders’ Representative’s gross negligence or willful misconduct. The Securityholders’ Representative except expressly may seek the advice of legal counsel in the event of any dispute or question as set forth in to the construction of any of the provisions of this AgreementAgreement or its duties hereunder, and the Securityholders’ Representative will not be liable for any action or omission pursuant to the advice of counsel. The Persons who immediately prior Securityholders’ Representative will not by reason of this Agreement have a fiduciary relationship in respect of any Securityholder.
(e) Any expenses or taxable income incurred by the Securityholders’ Representative in connection with the performance of its duties under this Agreement will not be the personal obligation of the Securityholders’ Representative but will be payable by and attributable to the Effective Time held Company Shares shall Securityholders based on each such Securityholder’s Pro Rata Share. The Securityholders will indemnify (severally and not jointly based on each such Securityholder’s respective Securityholder’s Pro Rata Share), defend and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against any and all losses, liabilities, claims damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Securityholders’ Representative Losses”) arising out of or expenses incurred in connection with the Securityholders’ Representative’s acceptance or administration of the Securityholders’ Representative’s duties hereunder or any other agreements ancillary hereto, in each case as such Securityholders’ Representative Loss is suffered or incurred, after written notice thereof to the Securityholders; provided, that to the extent that any such Securityholders’ Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Securityholders pro rata according to each such Person’s respective Securityholder’s Pro Rata Share multiplied by the amount of the Securityholders’ Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Securityholders, any such Securityholders’ Representative Losses may be recovered by the Securityholders’ Representative Indemnified Parties from the Expense Fund; provided, however, that while this Section allows the Securityholders’ Representative to be paid from the Expense Fund, this does not relieve the Securityholders from their obligation to promptly pay such Securityholders’ Representative Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Securityholders or otherwise. The Securityholders acknowledge and agree that the foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Representative or the termination of this Agreement.
(f) The Expense Fund will be held by the Escrow Agent in a segregated account and will be used for the purposes of paying directly or reimbursing the Securityholders’ Representative for any Securityholders’ Representative Losses incurred pursuant to this Agreement. Parent acknowledges that neither it, nor any of its Affiliates (including the Surviving Corporation) has any rights or interest in the Expense Fund. The Securityholders’ will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholder’s Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and will have no responsibility or liability for any loss of principal of the Expense Fund other than as a result ofof the Securityholders’ Representative’s gross negligence or willful misconduct. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or arising out of, or relating to any and all actions taken or omitted to be taken income distribution obligations. As soon as reasonably determined by the Securityholders’ Representative under this Agreement that the Expense Fund is no longer required to be withheld, the Securityholders’ Representative will distribute the remaining Expense Fund (if any) to the Paying Agent for distribution to the Securityholders based upon their Pro Rata Share.
(g) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Escrow Agreement or in connection with Securityholders’ Representative that is within the incurrence, payment, discharge or settlement of any of the obligations of such holders. None scope of the Securityholders’ Representative Indemnified Parties shall be liable Representative’s authority under this Section 8.16 will constitute a notice or communication to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions by, or omissions in connection therewith.
(d) A a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares Securityholders and shall will be final, binding and conclusive upon each such Person, Securityholder; and Parent and Purchaser may will be entitled to rely upon any such notice, communication, decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of such Securityholders’ Representative as being the a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of of, each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representativeevery Securityholder.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Archrock, Inc.)
Securityholders’ Representative. (a) ML Seller Rep LLC will act At the Closing, S▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D. shall be constituted and appointed as the Securityholders’ Representative for all Representative. For purposes under this Agreement. On the date of this Agreement, the Company hereby irrevocably appoints the term “Securityholders’ Representative as each Securityholder’s true Representative” shall mean the agent for and lawful agent, representative and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf of the Securityholders required Theraclone Stockholders to: (i) execute, as Securityholders’ Representative, this Agreement, the Escrow Agreement and any agreement or permitted under instrument entered into or delivered in connection with the transactions contemplated hereby; (ii) give and receive notices, instructions, and communications permitted or required under this Agreement. ML Seller Rep LLC hereby agrees to comply with , the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authorityEscrow Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares)any Theraclone Stockholder, to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: from PharmAthene (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of itself or any other PharmAthene Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated by hereby or thereby (except to the extent that this Agreement expressly contemplates that any such holdernotice or communication shall be given or received by each Theraclone Stockholder individually); (ii) review, negotiate and agree to give and accept communications and notices authorize transfers to PharmAthene from the Escrow Fund in satisfaction of Losses incurred by PharmAthene (on behalf of such holderitself or any other PharmAthene Indemnified Person) pursuant to Article V; (iii) object to defendsuch claims pursuant to Article V; (iv) consent or agree to, negotiate, agree toenter into, enter into or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders of courts and awards of courts arbitrators with respect to, claims against such holder; (iv) to defendclaims, negotiateresolve any such claims, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or take any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder actions in connection with the resolution of any claims under this Agreement dispute relating hereto or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfiedtransactions contemplated hereby by arbitration, including waiving settlement or otherwise, and take or forego any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all actions permitted or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion required of any adjustment Theraclone Stockholder or necessary in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoing. As foregoing and all of the representative other terms, conditions and limitations of such holdersthis Agreement; (v) consult with legal counsel, independent public accountants and other experts selected by it, solely at the Securityholders’ Representative shall act as agent for each such holder cost and shall have authority expense of the Theraclone Stockholders; (vi) consent or agree to bind each such holder any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Theraclone Stockholders (other than with respect to the payment of the Merger Consideration) in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For manner provided herein; and (vii) take all actions necessary or appropriate in the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out judgment of the Securityholders’ Representative Reserve in order to satisfyfor the accomplishment of the foregoing, in whole each case without having to seek or in part, obtain the consent of any of the Securityholders’ obligations person under this Agreement, including such obligations in Articles II and VIII.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreementcircumstance. The Persons who immediately prior to the Effective Time held Company Shares Theraclone Stockholders shall indemnify be bound by all actions taken and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered documents executed by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewiththis Agreement.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Pharmathene, Inc)
Securityholders’ Representative. (a) ML Seller Rep LLC will act as The Securityholders’ Representative is hereby appointed, authorized and empowered to act as a representative, for all purposes under this Agreement. On the date benefit of this Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative , as each Securityholder’s true the sole and lawful agent, representative exclusive agent and attorney-in-factfact to act on behalf of each Securityholder, in the Securityholders’ Representative’s sole and absolute discretion, in connection with full this Agreement, the Ancillary Agreements and the Transactions, which shall include the sole and exclusive power and authority: (i) to execute and deliver any and all of the assignments, agreements, documents, instruments or certificates required to be delivered by any one or more of the Securityholders at or prior to the Closing pursuant to Section 2.07 of this Agreement (with such modifications or changes therein as to which the Securityholders’ Representative, in hisits sole discretion, her shall have consented) and to agree to such amendments or modifications thereto as the Securityholders’ Representative, in its name sole discretion, determines to be desirable; (ii) to negotiate, execute and deliver amendments to this Agreement and the Ancillary Agreements and such waivers and consents in connection with this Agreement and the Ancillary Agreements and the consummation of the Transactions on hisbehalf of the Securityholders as the Securityholders’ Representative, her in its sole discretion, may deem necessary or its desirable; (iii) to make any calculations on behalf of the Securityholders required under this Agreement, including to determine Closing Working Capital, Cash, Closing Indebtedness, Transaction Expenses, Post-Closing Adjustment, Closing Merger Consideration, Closing Option Merger Consideration, Closing Per Share Merger Consideration, Participation Percentages, Earn-Out Gross Profit, and any Earn-Out Payment; and (iv) to collect and receive all monies and other proceeds and property payable to the Securityholders’ Representative under this Agreement, the Escrow Agreement (or to direct the collection and receipt thereof by Paying Agent), or with respect to the Securityholders’ Representative Expense Fund or otherwise as described herein, and, subject to any applicable withholding retention Laws, and net of any out-of-pocket expenses incurred by the Securityholders’ Representative, the Securityholders’ Representative shall disburse and pay the same to the Stockholders (and to the Surviving Corporation for further distribution to the Optionholders, subject to Section 2.11) consistent with full power each Person’s share of substitution)the Closing Merger Consideration, Closing Option Merger Consideration, and Additional Merger Consideration in accordance with this Agreement, subject, however, to such adjustments as Securityholders’ Representative may in its sole, good faith judgment deem appropriate and equitable under the circumstances; (v) to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Securityholders’ Representative arising out of or under or in any manner relating to this Agreement and each of the Ancillary Agreements or the Transactions, and to take any and all actions which the Securityholders’ Representative believes necessary or appropriate under the Ancillary Agreements or this Agreement for and on behalf of the Securityholders, including defending, asserting or pursuing any claim, action, proceeding or investigation (a “Claim”) against any member of the Parent Group or their Affiliates or respective Representatives, compromising or settling any such Claims, conducting negotiations with the members of the Parent Group, their Affiliates, and their respective Representatives regarding such Claims, and, in connection therewith, to: (a) assert any claim or institute any action, proceeding or investigation; (b) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by any member of the Parent Group, its Affiliates or any other Person, or by any federal, state or local Governmental Authority against the Securityholders’ Representative or any of the Securityholders, and receive process on behalf of any or all Securityholders required in any such claim, action, proceeding or permitted investigation and compromise or settle on such terms as the Securityholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (c) file any proofs of debt, claims and petitions as the Securityholders’ Representative may deem advisable or necessary; (d) settle or compromise any claims asserted under the Escrow Agreement; and (e) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Securityholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (vi) to refrain from enforcing any right of any Securityholder or the Securityholders’ Representative arising out of or under or in any manner relating to this ▇▇▇▇-▇▇▇▇-▇▇▇▇.4 Agreement or any Ancillary Agreement; (vii) to invest or reinvest the Securityholders’ Representative Expense Fund, or any other cash held by the Securityholders’ Representative hereunder, in such a manner as the Securityholders’ Representative deems appropriate (it being understood and agreed that, for U.S. federal income Tax purposes, each Securityholder shall be treated as the owner of its Participation Percentage of the Securityholders’ Representative Expense Fund, and any earnings thereon shall be allocated to such Securityholder and so reported by the Securityholders’ Representative, to the extent required, to the IRS and any other taxing authority; (viii) to release to the Securityholders (in accordance with their respective Participation Percentages) any then-remaining amounts comprising the Securityholders’ Representative Expense Fund (or any portion thereof), at such time or times and in such amounts as the Securityholders’ Representative may determine; (ix) to determine and to give instructions regarding the payment of amounts due and owing to any lenders of the Company or any of the Company Subsidiaries, including any Indebtedness; (x) to execute, deliver and perform under the Escrow Agreement, including to authorize the disbursement of any portion of the Escrow Amounts in accordance with this Agreement and the Escrow Agreement; (xi) to provide and receive notice and instructions to and from Parent and the Escrow Agent and otherwise act in its capacity as the Securityholders’ Representative under this Agreement and the Escrow Agreement; (xii) to engage and employ agents, attorneys, accountants, advisors, and other representatives, in each case, as the Securityholders’ Representative shall reasonably deem necessary or prudent in connection with the foregoing, and to determine and pay or give instructions regarding the payment of any costs and expenses incurred in connection therewith, whether from the Securityholders’ Representative Expense Fund or otherwise; and (xiii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, unit powers, assignment of membership interests, letters and other writings, and, in general, to do any and all things and to take any and all action that the Securityholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the Transactions, the Ancillary Agreements, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith. For the avoidance of doubt, nothing in this Agreement. ML Seller Rep LLC hereby agrees Section 9.14 is intended to comply with limit Securityholders’ Representative’s indemnification or other obligations in its capacity as a Securityholder as may be agreed to by the provisions of Section 2.07Securityholders’ Representative’s in any Ancillary Agreement delivered by the Securityholders’ Representative in its capacity as a Securityholder.
(b) The Securityholders’ Representative shall have the authoritynot be entitled to any fee, for and on behalf of Securityholders (except commission or other compensation for the holdersperformance of its services hereunder, if anybut shall be entitled to reimbursement, of Dissenting Company Shares)first, to take such actions and exercise such discretion as are required of from the Securityholders’ Representative pursuant to Expense Fund and, after depletion of Securityholders’ Representative Expense Fund, upon demand, from each Securityholder, based upon such Securityholder’s Participation Percentage of the terms Closing Merger Consideration, Closing Option Merger Consideration, and Additional Merger Consideration (assuming full payment thereof), of all Securityholders’ Representative’s expenses incurred in such capacity, including those of attorneys retained by Securityholders’ Representative in connection with Securityholders’ Representative’s duties or actions taken in respect of this Agreement or the Escrow AgreementAncillary Agreements, and Securityholders’ Representative may deduct the same from any such actions shall distributions that would be binding on each such holder and shall include the following: (i) otherwise owed to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims Securityholders under this Agreement or the Ancillary Agreements, or any related other agreement, document or instrument; (viii) instrument referred to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release herein or delivery to Parent of all therein or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and executed in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) herewith and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion of the Securityholders’ Representative to accomplish any of the foregoing. As the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIItherewith.
(c) The Securityholders’ Representative shall not be liable All of the indemnities, immunities and powers granted to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and under this Agreement shall survive the Closing Date or any termination of this Agreement or the Ancillary Agreements.
(d) The Company, the Surviving Corporation, its partnersSubsidiaries, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each the members of the foregoing Parent Group and their Affiliates shall have the right to conclusively rely upon (eachwithout independent verification, a “Securityholders’ Representative Indemnified Party”inquiry or further evidence of any kind whatsoever) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken taken, decisions, or instructions by the Securityholders’ Representative (or its successor in accordance with Section 9.14(f)) pursuant to this ▇▇▇▇-▇▇▇▇-▇▇▇▇.4 Agreement and any other Ancillary Agreement (including any amendment, extension or waiver of this Agreement or an Ancillary Agreement), all of which actions, omissions, decisions and instructions shall be legally binding upon the Securityholders. Any payment by Parent to the Securityholders’ Representative to the extent authorized under this Agreement shall be considered a payment by Parent to the Securityholders, and Parent and the Company shall have no Liability to any Securityholder for any payments so made.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder, and (ii) shall survive the consummation of the Transactions or any termination of this Agreement.
(f) Parent, the Company, and each Subsidiary of the Company shall be entitled to rely on the authority granted pursuant to the foregoing Section 9.14 until the Securityholders’ Representative delivers written notice to the Parent of the appointment of a successor Securityholders’ Representative, in which case, effective upon the date specified in such notice, Parent, the Company, and each Subsidiary of the Company shall be entitled to rely on the authority of such successor Securityholders’ Representative and such successor Securityholders’ Representative shall be deemed to be the Securityholders’ Representative for all purposes under this Agreement and each Ancillary Agreement.
(g) None of the Securityholders’ Representative or any of its Representatives shall have any liability of any kind to any of the Securityholders with respect to any action or omission by the Securityholders’ Representative in connection with this Agreement, any Ancillary Agreement, or the Transaction, except in the event of liability directly resulting from the Securityholders’ Representative’s gross negligence or Fraud. In no event will the Securityholders’ Representative (A) be liable to any of the Securityholders for any action or omission pursuant to the reasonable advice of counsel, (B) be liable to any of the Securityholders in connection with the Securityholders’ Representative’s investment or reinvestment of any cash held by it hereunder in good faith, in accordance with the terms hereof, or as a result of any liquidation of any such investment prior to its maturity, or (C) be required to advance its own funds on behalf of the Securityholders. The Securityholders’ Representative’s appointment as such shall not be deemed to create a partnership or other fiduciary or similar relationship between the Securityholders’ Representative and any Securityholder.
(h) The Securityholders’ Representative may resign at any time by written notice to Parent and the Securityholders, and the former Securityholders’ Representative (in its capacity as such) so resigning shall thereafter have no further obligations, responsibilities or liabilities under this Agreement or any of the Ancillary Agreements (in each case, in its capacity as a Securityholders’ Representative), except to execute and deliver such documents and to take such further action as may be reasonably required to effect the transfer of such Securityholders’ Representative’s obligations and responsibilities (in its capacity as such) under this Agreement and any of the Ancillary Agreements, as applicable, to the Appointee, and except for any liabilities that it incurred through the effective date of such resignation or removal due to such Securityholders’ Representative’s gross negligence or fraud. In the event that a Securityholders’ Representative resigns, a new Securityholders’ Representative shall be appointed by a vote of the Securityholders that own more than 50% of the aggregate Participation Percentages (the “Appointee”), such appointment to become effective upon the written acceptance thereof by the Appointee. Upon such acceptance by the Appointee: (A) the Appointee shall promptly notify Parent and the Securityholders of its appointment as the Securityholders’ Representative hereunder; and (B) the former Securityholders’ Representative so resigning shall as promptly as is reasonably practicable deliver to the Appointee all books, records, documents and other materials in its possession relating to this Agreement and the Ancillary Agreements that are reasonably necessary for the Appointee to perform its obligations as the Securityholders’ Representative under this Agreement or and the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holdersapplicable Ancillary Agreements. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.▇▇▇▇-▇▇▇▇-▇▇▇▇.4 ▇▇▇▇-▇▇▇▇-▇▇▇▇.4
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep LLC will act as The Selling Securityholders hereby appoint, authorize and empower ▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇. ▇▇▇▇▇▇ in such capacity and any successor appointed pursuant to or in accordance with Section 1.10(b), the “Securityholders’ Representative Representative”) to act on behalf of each Selling Securityholder in connection with, and to facilitate the consummation of the transactions under, this Agreement, which shall include the power and authority (i) to make all decisions relating to the determination of any adjustments to the Purchase Price, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Selling Securityholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Selling Securityholders may be required to indemnify the Buyer pursuant to Article VII hereof, provided, that the settlement affects the Selling Securityholders on a proportionate basis with no individual Selling Securityholder becoming liable for more than his or her Pro Rata Share of any claim, (iii) to give and receive all purposes notices required to be given under this Agreement. On , copies of which shall be promptly provided to each Selling Securityholder, (iv) to execute and deliver the date of this Escrow Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true (v) to designate and lawful agent, representative determine amounts to be paid and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf recipients of the Securityholders required or permitted under or in connection with this Agreement. ML Seller Rep LLC hereby agrees Estimated Closing Expenses, (vi) to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required make payment of the Securityholders’ Representative Expenses, (vii) collect and/or sell any receivable transferred to the Selling Securityholders pursuant to the terms of this Agreement or and to distribute the Escrow Agreement, proceeds thereof to the Selling Securityholders and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all additional action as is contemplated to be taken by or on behalf of the Selling Securityholders by the terms of this Agreement.
(b) In the event that the Securityholders’ Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Abby or (ii) in her absence, such person selected by a majority of the Selling Securityholders, shall fill such vacancy and shall be deemed to be the Securityholders’ Representative for all purposes of this Agreement.
(c) All decisions and actions necessary by the Securityholders’ Representative, including any agreement between the Securityholders’ Representative and the Buyer relating to the determination of any adjustments to the Purchase Price, the defense or appropriate in settlement of any claims for which the sole discretion Selling Securityholders may be required to indemnify the Buyer pursuant to Article VII hereof or the payment of the Estimated Closing Expenses or the Representative Expenses shall be binding upon all of the Selling Securityholders, and no Selling Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) By their execution of this Agreement, the Selling Securityholders agree that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Securityholders’ Representative as to accomplish the determination of any adjustments to the Purchase Price, the settlement of any claims for indemnification by the Buyer pursuant to Article VII hereof, the payment of the foregoing. As Estimated Closing Expenses or the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of Expenses or any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIII.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all other actions taken or omitted required to be taken by the Securityholders’ Representative under this Agreement hereunder, and no Party hereunder shall have any cause of action against the Buyer or the Escrow Agreement Securityholders’ Representative for any action taken by the Buyer in reliance upon the instructions or in connection with the incurrence, payment, discharge or settlement of any decisions of the obligations of such holders. None Securityholders’ Representative;
(ii) all actions, decisions and instructions of the Securityholders’ Representative Indemnified Parties shall be liable to conclusive and binding upon all of the Selling Securityholders, and no Selling Securityholder shall have any Person who immediately prior to cause of action against the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith.
(d) A decisionSecurityholders’ Representative for any action taken, act, consent decision made or instruction of given by the Securityholders’ Representative under this Agreement, except for fraud or relating to intentional breach of this Agreement shall constitute a decision for all Persons who immediately prior to by the Effective Time held Company Shares Securityholders’ Representative;
(iii) the provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be finalenforceable notwithstanding any rights or remedies that any Selling Securityholder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, binding and conclusive upon each such Personthe Buyer, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such the Securityholders’ Representative as being and the decisionCompany shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if any such Party brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, actheirs, consent or instruction legal representatives and successors of each such Person. Parent Selling Securityholder, and Purchaser are hereby relieved from any liability references in this Agreement to a Selling Securityholder or to the Selling Securityholders shall mean and include the successors to the Selling Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(e) In connection with any Person for any acts done by them material determinations or decisions hereunder, as determined in accordance with such decision, act, consent or instruction the good faith discretion of the Securityholders’ Representative, the Securityholders’ Representative shall consult with the ESOP Stockholder regarding such determinations or decisions.
(ef) The Securityholders’ Representative may incur reasonable out-of-pocket expenses (including reasonable attorney’s fees and court costs) on behalf of the Selling Securityholders in his capacity as the Securityholders’ Representative (collectively, the “Representative Expenses”). If ML Seller Rep LLC becomes unable not paid directly to serve as the Securityholders’ Representative by the Selling Securityholders, the Representative Expenses will be paid out of the Representative Fund and thereafter the Representative Expenses may be recovered from any Escrow Cash to be distributed to the Selling Securityholders following the termination of the Escrow Agreement, provided, that, the Securityholders’ Representative shall have delivered a notice to the Buyer and the Escrow Agent not less than five Business Days prior to the termination of the Escrow Agreement setting forth the amount of such Representative Expenses to be paid to the Securityholders’ Representative, and such other Person or Persons may recovery will be designated by made from the holders of a majority Selling Securityholders according to their respective Pro Rata Share. The Securityholders’ Representative shall cause any balance remaining in the Representative Fund at the termination of the Company Preferred Shares, and such Person or Persons shall succeed as Escrow Agreement to be promptly distributed to the Selling Securityholders according to their Pro Rata Share; provided that the Securityholders’ RepresentativeRepresentative shall be entitled to retain any portion of the Representative Fund required to fund Representative Expenses related to unresolved Expected Claim Notices or Claim Notices.
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep At the Closing, by the adoption of the Merger, and by receiving the benefits thereof, including any consideration payable hereunder, each Company Securityholder shall be deemed to have approved the appointment of, and Fortis Advisors LLC will act shall be constituted and appointed as the Securityholders’ Representative. The Securityholders’ Representative for all purposes under this Agreement. On shall be the date of this Agreementexclusive representative, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true and lawful agent, representative agent and attorney-in-fact, with full power in his, her or its name fact for and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf of the Company Securityholders required or permitted under or for all purposes in connection with this Agreement. ML Seller Rep LLC hereby agrees Agreement and the agreements ancillary hereto, including to comply (i) execute, as the Securityholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the provisions of Section 2.07.
transactions contemplated hereby, (bii) The Securityholders’ Representative shall have the authoritygive and receive notices, instructions and communications 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 Securityholders (except for the holders, if any, of Dissenting any Company Shares)Securityholder, to take such actions and exercise such discretion as are required or from Buyer (on behalf of the Securityholders’ Representative pursuant itself or any other Buyer Indemnified Party) relating to the terms of this Agreement or any of the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates transactions contemplated hereby and any other documents relating thereto 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 Buyer to 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 holder; claims) pursuant to Section 8, (iiiv) object to give and accept communications and notices on behalf of such holder; claims pursuant to Section 2.17 or Section 8, (iiiv) to defendconsent or agree to, negotiate, agree toenter into, enter into or, if applicable, contest, prosecute or defend, settlements and compromises of, and comply with judgments, orders and awards or decrees of courts with respect to, claims against such holder; (iv) claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to defend, negotiate, agree to, enter into settlements and compromises ofthe transactions contemplated hereby by settlement or otherwise, and comply with orders take or forego any or all actions permitted or required of any Company Securityholder or necessary in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing and awards all of courts with respect tothe other terms, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due conditions and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision limitations of this Agreement, subject to compliance (vi) consult with Section 10.01 legal counsel, independent public accountants and Section 10.02; other experts selected by it, solely at the cost and expense of the Company Securityholders, (vii) consent or agree to receive service of process on behalf of such holder in connection with any claims under amendment to this Agreement or to waive any related document terms and conditions of this Agreement providing rights or instrument; (viii) to determine whether the conditions benefits to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; Company Securityholders (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) other than with respect to the post-Closing adjustments contemplated by Article II (payment of the consideration payable hereunder to the Company Securityholders) in accordance with the terms hereof and in connection therewith calculating the portion of any adjustment manner provided herein, (viii) pursuant to Section 2.17, review, negotiate, object to, accept or agree to the calculations set forth in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; Buyer Closing Statement and (xix) to take any and all actions necessary or appropriate in the sole discretion 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 accomplish seek or obtain the consent of any Person under any circumstance and (x) utilize the Expense Fund in connection with any of the foregoing. As Notwithstanding the representative of such holdersforegoing, the Securityholders’ Representative shall have no obligation to act on behalf of the Company Securityholders, except as agent for each such holder expressly provided herein and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Securityholders’ Representative Engagement Agreement, and Parent 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 Purchaser may 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 appointment Securityholders’ Representative as the duly appointed attorney-in-fact of each Company Securityholder and authorityhas 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 shall be entitled to reimbursement from such Persons of may resign at any and all fees, expenses and costs incurred time with no less than thirty (30) days’ prior written notice as provided for in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative mayEngagement Agreement. The Person serving as the Securityholders’ Representative may be removed or replaced from time to time, in or if such Person resigns from its sole discretionposition as the Securityholders’ Representative, make payments out then a successor may be appointed, by the Company 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.
(b) Certain Company Securityholders have entered or will enter into an engagement agreement (the “Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of Engagement Agreement”) with the Securityholders’ obligations Representative to provide direction to the Securityholders’ Representative in connection with its services under this Agreement, and the Securityholders’ Representative Engagement Agreement (such Company Securityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Securityholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Securityholders’ Representative Group”) shall be liable to any Company Securityholder for any act done or omitted hereunder or under the Securityholders’ Representative Engagement Agreement while acting in good faith (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such obligations in Articles II good faith) and VIII.
(c) without gross negligence or willful misconduct. The Securityholders’ Representative shall not be liable to any Securityholder for any act done action or omitted omission pursuant to be taken as Securityholders’ Representative except expressly as set forth in this Agreementthe advice of counsel. The Persons who immediately prior to the Effective Time held Company Shares Securityholders shall severally (based on each such Company Securityholder’s Pro Rata Share) but not jointly indemnify and hold harmless the Securityholders’ Representative Group and hold it harmless against any loss, liability, damage, claim, penalty, fine, amount paid in settlement, judgment, forfeiture, fee, cost or expense (including the fees and expenses of counsel, other professionals and experts and their staffs and all expense of document location, duplication and shipment and in connection with seeking recovery from insurers) (collectively, “Representative Losses”) arising out of, resulting from or in connection with the acceptance or administration of its partnersduties hereunder and under any agreements ancillary hereto, stockholdersin each case as such Representative Losses are suffered or incurred; provided, affiliatesthat in the event that any such Representative Losses are finally adjudicated to have been directly caused by the gross negligence, directors, officers, fiduciaries, employees and agents of each willful misconduct or bad faith of the foregoing (eachSecurityholders’ Representative, a “the Securityholders’ Representative Indemnified Party”) from and against all losseswill reimburse the Company Securityholders the amount of such indemnified Representative Losses to the extent attributable to such gross negligence, liabilitieswillful misconduct or bad faith. If not paid directly to the Securityholders’ Representative by the Company Securityholders, claims or expenses incurred or suffered any such Representative Losses may be recovered by the Securityholders’ Representative from the Expense Fund and, after the Expense Fund is fully depleted, from the portion of the Indemnity Escrow Fund, the Specified Matters Escrow Fund or Adjustment Escrow Fund otherwise distributable to the Company Securityholders (and not distributed or distributable to a Buyer Indemnified Parties Party or subject to a pending indemnification claim of a Buyer Indemnified Party) at such time as a result ofsuch amounts would otherwise be distributable to the Company Securityholders, or arising out ofand such recovery will be made from the Company Securityholders according to their respective Pro Rata Shares of such Representative Losses; provided, or relating to any and all actions taken or omitted that while this Section allows the Securityholders’ Representative to be taken paid from the aforementioned sources of funds this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement or the transactions contemplated hereby. Furthermore, the Securityholders’ Representative shall not be required to take any action unless the Securityholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Securityholders’ Representative against the costs, expenses and liabilities which may be incurred by the Securityholders’ Representative in performing such actions. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the limitations on liability of the Company Securityholders set forth elsewhere in this Agreement (including in Section 8.3) are not intended to be applicable to the indemnities provided to the Securityholders’ Representative under this Agreement Section 10.2(b). The Company Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None removal of the Securityholders’ Representative Indemnified Parties or any member of the Advisory Group, the Closing, or the termination of this Agreement. The powers, immunities and rights to indemnification granted to the Securityholders’ Representative Group hereunder: (i) are coupled with an interest and shall be liable to irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Person who immediately prior to Company Securityholder and shall be binding on any successor thereto, and (ii) shall survive the Effective Time held delivery of an assignment by any Company Shares Securityholder of the whole or any fraction of his, her or its interest in respect of such arrangements the Indemnity Escrow Fund or actions or omissions in connection therewiththe Specified Matters Escrow Fund.
(dc) A After the Closing, any notice or communication given or received by, and any decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Securityholders’ Representative that is within the scope of the Securityholders’ Representative Representative’s authority under or relating to this Agreement Section 10.2(a) shall constitute a decision for notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Persons who immediately prior to the Effective Time held Company Shares Securityholders and shall be final, binding and conclusive upon each such Person, Company Securityholder and Parent their successors as if expressly confirmed and Purchaser may ratified in writing by such Company Securityholder; and each Buyer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Securityholder. Any defenses which may be available to any Company Securityholder to contest, negate or disaffirm the action of the Securityholders’ Representative as being taken in good faith under this Agreement or the decisionSecurityholders’ Representative Engagement Agreement are waived. Buyer hereby covenants and agrees to provide the Securityholders’ Representative with access, actduring normal business hours, consent to all books, records, employees, witnesses and other information in the custody or instruction control of each such Person. Parent Buyer or the Final Surviving Entity in connection with any claim for indemnification under Section 8 and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction the discharge of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as ’s duties hereunder. The Securityholders’ RepresentativeRepresentative shall be entitled to: (i) rely upon the Spreadsheet, such other Person or Persons may (ii) rely upon any signature believed by it to be designated by the holders of genuine, and (iii) reasonably assume that a majority signatory has proper authorization to sign on behalf of the applicable Company Preferred Shares, and such Person Securityholder or Persons shall succeed as the Securityholders’ Representativeother party.
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep Shareholder Representative Services LLC will act is hereby constituted and appointed as Securityholders’ Representative for all purposes under this Agreement. On the date of this Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true agent and lawful agent, representative and attorney-in-fact, with full power attorney in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf of the Securityholders required or permitted under or in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, fact for and on behalf of each of the Securityholders (except for the holders“Securityholders’ Representative”). Without limiting the generality of the foregoing, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant has full power and authority, on behalf of each Securityholder and his or her successors and assigns, to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold interpret the terms and deliver to Parent Certificates and any other documents relating thereto on behalf provisions of such holderthis Agreement; (ii) execute and deliver all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to give and accept communications and notices on behalf be given in connection with the consummation of such holderthe transactions contemplated by this Agreement, including the Escrow Agreement; (iii) to defendreceive service of process in connection with any claims under this Agreement; (iv) agree to, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, demand arbitration and comply with orders of courts and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) arbitrators with respect to the post-Closing adjustments contemplated by Article II (such claims, and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) engage counsel, and such accountants and other advisors or experts for the Securityholders and incur such other expenses on behalf of the Securityholders in connection with this Agreement and the transactions contemplated hereby as the Securityholders’ Representative may deem appropriate; and (vii) take all actions necessary or appropriate in the judgment of Securityholders’ Representative on behalf of the Securityholders in connection with this Agreement.
(b) If a Person serving as the Securityholders’ Representative resigns or for any other reason ceases to serve in such capacity, then by written notice to Parent, signed by Securityholders holding (or who held immediately prior to the Effective Time) a majority of the shares of Company Stock determined in a fully diluted basis, a successor Securityholders’ Representative named in such notice will be substituted for the Person who ceased to serve.
(c) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder grants unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the specific and limited matters described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Securityholders’ Representative may lawfully do or cause to be done by virtue hereof. As Each Securityholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the representative Securityholders’ Representative of any documents executed by the Securityholders’ Representative pursuant to this Section 10.1, such holdersSecurityholder shall be bound by such documents as fully as if such Securityholder had executed and delivered such documents. No bond shall be required of the Securityholders’ Representative, and the Securityholders’ Representative shall act as agent receive no compensation for each such holder and shall have authority its services other than pursuant to bind each such holder in accordance with the terms of this Agreement and the Escrow that certain Securityholders’ Representative Agreement, dated on or about the date hereof, by and Parent among the Securityholders’ Representative, the Company and Purchaser may rely on certain of the Securityholders (the “Securityholders’ Representative Agreement”). Each Securityholder hereby agrees to receive correspondence from the Securityholders’ Representative, including in electronic form.
(d) Each Securityholder acknowledges and agrees that the Securityholders’ Representative shall not be obligated to take any actions and shall be entitled to take such appointment and authorityactions as the Securityholders’ Representative deems appropriate in the Securityholders’ Representative’s sole discretion. No Person serving as the Securityholders’ Representative shall have any liability to any Person in connection with any act or omission as the Securityholders’ Representative, except for such Person’s willful misconduct or gross negligence. The Securityholders’ Representative shall not have any implied duties or obligations. The Securityholders’ Representative may rely upon any instrument which the Securityholders’ Representative in good faith believes to be entitled to reimbursement from such Persons genuine. The Securityholders’ Representative may consult legal counsel selected by it in the event of any and all feesdispute or question relating to this Agreement or any of the transactions or documents contemplated in connection with this Agreement, expenses and costs incurred or in connection with the performance conduct of such the Securityholders’ Representative’s duties under this Agreementduties. For Each Securityholder further agrees to indemnify and hold the avoidance of doubtSecurityholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Securityholders’ Representative, in each case as such loss, liability or expense is incurred or suffered; provided that in the event it is finally adjudicated that any such loss, liability or expense was primarily caused by the Securityholders’ Representative’s gross negligence or willful misconduct, the Securityholders’ Representative maywill reimburse the Securityholders the amount of such indemnified loss, in its sole discretion, make payments out of liability or expense attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative Reserve in order to satisfy, in whole or in partby the Securityholders, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIII.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims liabilities or expenses incurred or suffered may be recovered by the Securityholders’ Representative Indemnified Parties as a result offrom (i) the funds in the Expense Fund and (ii) if the Expense Fund is depleted, or arising out of, or relating the amounts in the Escrow Account otherwise distributable to any the Securityholders pursuant to the terms hereof and all actions taken or omitted to be taken the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Securityholders’ Representative under this Agreement or to the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of Agent; provided that while this section allows the Securityholders’ Representative Indemnified Parties shall to be liable paid from the Expense Fund and/or the Escrow Account, this does not relieve the Securityholders from their obligation to promptly pay such losses, liabilities and expenses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any Person who immediately prior remedies available to the Effective Time held Company Shares in respect of such arrangements it at law or actions or omissions in connection therewithotherwise.
(de) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for of all Persons who immediately prior to the Effective Time held Company Shares Securityholders and shall be final, binding and conclusive upon each such PersonSecurityholder, Parent, Merger Sub and Parent Company and Purchaser their respective Affiliates may rely upon any such decision, act, consent or instruction of such the Securityholders’ Representative as being the decision, act, consent or instruction of each such Personand every Securityholder. Parent Each of Parent, Merger Sub, Company and Purchaser are their respective Affiliates is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Securityholders’ Representative. In furtherance of the foregoing, any reference to a power of Securityholders under this Agreement, to be exercised or otherwise taken, shall be a power vested in the Securityholders’ Representative.
(ef) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may The Expense Amount shall be designated held by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ RepresentativeRepresentative in a segregated client bank account (the “Expense Fund”) and shall be used solely for the purposes of paying directly or reimbursing the Securityholders’ Representative for any third party expenses or other expenses or obligations incurred by or that are the responsibility of the Securityholders’ Representative pursuant to this Agreement, the Escrow Agreement or the Securityholders’ Representative Agreement. The Securityholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Securityholders shall not receive interest or other earnings on the Expense Fund and the Securityholders irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Expense Fund. The Securityholders acknowledge that the Securityholders’ Representative is not providing any investment supervision, recommendations or advice. The Securityholders’ Representative shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the expiration of the Escrow Period and the resolution in full of all pending claims against the Escrow Account, if any, under the terms set forth herein, the Securityholders’ Representative shall disburse the balance of the Expense Fund to the Escrow Agent to be disbursed to the Securityholders in accordance with the Escrow Agreement. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Securityholders at the time of Closing.
Appears in 1 contract
Securityholders’ Representative. (a) ML Each Seller Rep LLC will act hereby irrevocably designates and appoints Pro-Edge, LP. as, and Pro-Edge, LP. hereby irrevocably accepts the designation as Securityholders’ Representative and agrees to be, the representative of each Seller and the “Securityholders Representative” for all purposes under of this Agreement. On The Securityholders Representative is hereby designated as the date attorney in fact and agent for and on behalf of this Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true Seller and lawful agent, representative and attorney-in-fact, with full power in his, her or its name respective heirs, successors and on his, her or its behalf (and assigns with full respect to the exercise of the power of substitution), to take any and all actions and make all decisions on behalf of the Securityholders required each Seller under this Agreement and any other document or permitted under or agreement delivered in connection herewith, including without limitation, decisions and actions with this Agreement. ML Seller Rep LLC hereby agrees respect to comply payments and adjustments under Article II, with the provisions respect to satisfaction and waiver of Section 2.07.
(b) closing conditions under Article IX, and with respect to claims for indemnification under Article X. The Securityholders’ Securityholders Representative also shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) power to give and accept receive all notices and communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect tobe given or received by the Sellers, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to them, under this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf for the Sellers, or any of such holder them, in connection with any claims under this Agreement and to take all actions on behalf of the Sellers, or any related document of them, necessary to settle, pay or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving take any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) other actions with respect to the post-Closing adjustments contemplated Sellers’ or any Seller’s indemnification obligations under Article X. Each Seller shall be bound by Article II (all actions taken and documents executed by the Securityholders Representative in connection with this Agreement. Notices or communications to or from the 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 Representative and arising out of or in connection therewith calculating with the portion acceptance or administration of its duties hereunder. Without limiting the generality of the foregoing, the Securityholders Representative shall have full power and authority to interpret all the terms and provisions of this Agreement on behalf of all Sellers and their respective heirs, successors and assigns.
(b) This power of attorney granted by each Seller to the Securityholders Representative is coupled with an interest and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated or affected by subsequent disability or incapacity of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims Seller or by any Parent Indemnified Party pursuant act of any Seller or by operation of law, whether by such person’s death, disability, protective supervision or any other event. Each Seller shall be deemed to Article VIII; and (x) to take have waived any and all actions necessary defenses that may be available to contest, negate or appropriate in disaffirm the sole discretion action of the Securityholders’ Securityholders Representative to accomplish taken in good faith under this Agreement or any document or agreement delivered in connection herewith. Notwithstanding the power of attorney granted in this Section 12.15, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Seller (instead of the foregoing. As Securityholders Representative) having signed or given the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIIsame directly.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior Notwithstanding anything to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under contrary contained in this Agreement or the Escrow Agreement or in any other agreement executed in connection with the incurrencetransactions contemplated by this Agreement: (i) Buyer shall be entitled to deal exclusively with Securityholders Representative on all matters including, paymentbut not limited to, discharge matters relating to any claim for indemnification, compensation or settlement reimbursement hereunder; and (ii) Buyer shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of the obligations Sellers by Securityholders Representative, and on any other action taken or purported to be taken on behalf of such holdersSellers by Securityholders Representative, as fully binding upon Sellers. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under Securityholders Representative, including an amendment, extension, waiver or relating to termination of this Agreement Agreement, shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares of Sellers and shall be final, binding and conclusive upon each such Person, Sellers; and Parent and Purchaser Buyer may rely upon any such decision, act, consent or instruction of such Securityholders’ Securityholders Representative as being the decision, act, consent or instruction of each such PersonSellers. Parent and Purchaser are Buyer is hereby relieved from any liability to any Person for any acts done by them it in accordance with such decision, act, consent or instruction of the Securityholders’ Securityholders Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Intrexon Corp)
Securityholders’ Representative. (a) ML Seller Rep LLC Each Company Shareholder, by participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, will act as irrevocably be deemed to have appointed Wolverine Securityholders’ Representative for all purposes under this Agreement. On Representative, LLC, as of the date of this AgreementEffective Time, as the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true and lawful agent, exclusive representative and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and fact for such Company Shareholder for all actions on behalf of the Securityholders required or permitted under or purposes in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any agreements ancillary hereto (including the full power and authority on such actions shall be binding on each such holder and shall include the following: Company Shareholder’s behalf): (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holderconsummate the Transactions; (ii) to give endorse and accept communications and notices on behalf deliver any certificates or instruments of such holderassignment as Parent will reasonably request; (iii) to defendexecute and deliver on behalf of such Company Shareholder any amendment, waiver, ancillary agreement or other document that the Securityholders’ Representative deems necessary or appropriate; (iv) to give and receive notices and communications to or from Parent or the Surviving Corporation relating to this Agreement, the Merger or any of the transactions and other matters contemplated hereby (except to the extent that this Agreement expressly contemplates that any such notice or communication must be given or received by a Company Shareholder individually); (v) to make, administer and resolve disputes; (vi) to consent or agree to, negotiate, agree toenter into, enter into or, if applicable, prosecute or defend, settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02claims; (vii) to receive service provide any consents or agreements hereunder, including with respect to any proposed settlement of process on behalf of such holder in connection with any claims under or to any amendment to this Agreement or any related document or instrumentAgreement; and (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. As Each Company Shareholder agrees that such appointment is coupled with an interest, is therefor irrevocable and will survive the representative death, incapacity, bankruptcy, dissolution or liquidation of such holdersCompany Shareholder. All decisions and actions (including the execution of any agreement or document) by the Securityholders’ Representative on behalf of any Company Shareholder (to the extent authorized by this Agreement) will be binding upon such Company Shareholder, and no such Company Shareholder will have the right to object, dissent, protest or otherwise contest the same. Each Company Shareholder agrees that Parent will be entitled to rely on any action taken by the Securityholders’ Representative, on behalf of such Company Shareholder, pursuant to this Section 8.16, and that each such action will be binding on each Company Shareholder as fully as if such Company Shareholder had taken such action. No bond will be required of the Securityholders’ Representative.
(b) Notwithstanding Section 8.16(a), in the event that the Securityholders’ Representative, upon the advice of legal counsel, is of the opinion that he requires further authorization from Company Shareholder on any matters concerning this Agreement or the Transactions, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall will be entitled to reimbursement seek such further authorization from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in Company Shareholder prior to acting on its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIIbehalf.
(c) The Securityholders’ Representative shall may resign from its capacity as the Securityholders’ Representative at any time by written notice delivered to Parent. If there is a vacancy at any time in the position of the Securityholders’ Representative for any reason, such vacancy will be filled by the holders of a majority in interest of the former Company Shareholder upon not less than three days’ prior written notice to Parent, in which case the references to the Securityholders’ Representative will include the replacement.
(d) All acts of the Securityholders’ Representative hereunder in its capacity as such will be deemed to be acts on behalf of the Company Shareholder and not of the Securityholders’ Representative individually. The Securityholders’ Representative will not be liable to the Company Shareholder in connection with the Securityholders’ Representative’s services pursuant to this Agreement and any Securityholder agreements ancillary hereto, for any liability of any kind, including any liability of any Company Shareholder, or otherwise or for any error of judgment, or any act done or step taken or omitted to be taken as by it in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except in the case of the Securityholders’ Representative’s gross negligence or willful misconduct. The Securityholders’ Representative except expressly may seek the advice of legal counsel in the event of any dispute or question as set forth in to the construction of any of the provisions of this AgreementAgreement or its duties hereunder, and the Securityholders’ Representative will not be liable for any action or omission pursuant to the advice of counsel. The Persons who immediately prior Securityholders’ Representative will not by reason of this Agreement have a fiduciary relationship in respect of any Company Shareholder.
(e) Any expenses or taxable income incurred by the Securityholders’ Representative in connection with the performance of its duties under this Agreement will not be the personal obligation of the Securityholders’ Representative but will be payable by and attributable to the Effective Time held Company Shares shall indemnify Shareholder. The Company Shareholder will indemnify, defend and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against any and all losses, liabilities, claims damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Securityholders’ Representative Losses”) arising out of or expenses incurred in connection with the Securityholders’ Representative’s acceptance or administration of the Securityholders’ Representative’s duties hereunder or any other agreements ancillary hereto, in each case as such Securityholders’ Representative Loss is suffered or incurred, after written notice thereof to the Company Shareholder; provided, that to the extent that any such Securityholders’ Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Securityholders’ Representative, the Securityholders’ Representative will reimburse the Company Shareholder for the amount of the Securityholders’ Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Securityholders’ Representative by the Company Shareholder, any such Securityholders’ Representative Losses may be recovered by the Securityholders’ Representative Indemnified Parties from the Expense Fund; provided, however, that while this Section allows the Securityholders’ Representative to be paid from the Expense Fund, this does not relieve the Company Shareholder from its obligation to promptly pay such Securityholders’ Representative Losses as they are suffered or incurred, nor does it prevent the Securityholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Securityholders’ Representative be required to advance its own funds on behalf of the Company Shareholder or otherwise. The Company Shareholder acknowledge and agree that the foregoing indemnities will survive the Closing, the resignation or removal of the Securityholders’ Representative or the termination of this Agreement.
(f) The Expense Fund will be held by the Escrow Agent in a segregated account and will be used for the purposes of paying directly or reimbursing the Securityholders’ Representative for any Securityholders’ Representative Losses incurred pursuant to this Agreement. Parent acknowledges that neither it, nor any of its Affiliates (including the Surviving Corporation) has any rights or interest in the Expense Fund. The Company Shareholder will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Securityholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Securityholders’ Representative is not providing any investment supervision, recommendations or advice and will have no responsibility or liability for any loss of principal of the Expense Fund other than as a result ofof the Securityholders’ Representative’s gross negligence or willful misconduct. The Securityholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or arising out of, or relating to any and all actions taken or omitted to be taken income distribution obligations. As soon as reasonably determined by the Securityholders’ Representative under this Agreement that the Expense Fund is no longer required to be withheld, the Securityholders’ Representative will distribute the remaining Expense Fund (if any) to the Company Shareholder.
(g) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Escrow Agreement or in connection with Securityholders’ Representative that is within the incurrence, payment, discharge or settlement of any of the obligations of such holders. None scope of the Securityholders’ Representative Indemnified Parties shall be liable Representative’s authority under this Section 8.16 will constitute a notice or communication to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions by, or omissions in connection therewith.
(d) A a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares Shareholder and shall will be final, binding and conclusive upon each such Person, the Company Shareholder; and Parent and Purchaser may will be entitled to rely upon any such notice, communication, decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of such Securityholders’ Representative as being the a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of of, each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representativeevery Company Shareholder.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Archrock, Inc.)
Securityholders’ Representative. (a) ML Seller Rep LLC will act as Securityholders’ Representative for all purposes under this Agreement. On In order to efficiently administer the date provisions of this Agreement, including the Company hereby irrevocably appoints defense and/or settlement of any claims under Section 6 or 7.2 hereof, if the Securityholders’ Representative Merger is approved by the Shareholders, effective upon such vote and without further act of any Securityholder, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be appointed and shall act as each Securityholder’s true and lawful agent, representative the agent and attorney-in-fact, with full power in his, her or its name fact for and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf of the Securityholders required or permitted under or in connection with this Agreementother than holders of the Dissenting Shares, if any (the “Securityholders’ Representative”). ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authorityshall, for and on behalf of the Securityholders:
(i) take all action permitted in connection with the implementation of those provisions of this Agreement and the Escrow Agreement that require or permit action by the Securityholders’ Representative,
(ii) take all action permitted in connection with the defense and/or settlement of any and all claims for which the Securityholders may be required to provide indemnification pursuant to Sections 6 or 7.2 hereof (except for including rejecting, contesting, negotiating, settling and resolving any such claims) and any claims that may be made against the holders, if any, Escrow Funds,
(iii) comply with orders of Dissenting Company Shares), courts and determinations and awards of arbitrators with respect to claims,
(iv) review and take such actions action with respect to Tax Returns pursuant to Section 7 hereof,
(v) give and exercise such discretion as are receive all notices and service of process required of or permitted to be given or received by the Securityholders or the Securityholders’ Representative pursuant under this Agreement or the Escrow Agreement,
(vi) take any and all such additional action as is contemplated to be taken by or on behalf of the Securityholders by the terms of this Agreement or of the Escrow AgreementAgreement or as may be necessary or appropriate in the judgment of the Securityholders’ Representative for the accomplishment of the foregoing, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; and
(vii) use and administer the Securityholders’ Representative Escrow Funds.
(b) All notices provided to receive service of and/or legal process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if served upon the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release accordance with this Agreement or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of Agreement shall be deemed to be provided to and/or served upon the Securityholders and shall be conclusive and binding upon the Securityholders. All decisions, actions, agreements, and instructions by the Securityholders’ obligations (if any) with respect Representative, including any consent, waiver, or agreement between the Securityholders’ Representative and any Buyer Indemnitee relating to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion defense or settlement of any adjustment claim for which the Securityholders may be required to provide indemnification pursuant to Sections 6 or 7.2 hereof, shall be conclusive and binding upon the Securityholders, and the Buyer, each other Buyer Indemnitee and the Escrow Agent shall be entitled to rely conclusively thereon.
(c) Except as otherwise provided herein, any remaining amounts in the Securityholders’ favor that is payable Representative Escrow Funds shall, from time to any Securityholder) time as determined by the Securityholders’ Representative in his sole and indemnification claims absolute discretion, be distributed by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion of the Securityholders’ Representative to accomplish any of the foregoing. As the representative of Securityholders in accordance with each such holders, the Securityholder’s Pro Rata Percentage.
(d) The Securityholders’ Representative shall act as agent for each may employ and obtain the advice of legal counsel, accountants and other professional advisors and incur such holder and shall have authority to bind each such holder other reasonable expenses on behalf of the Securityholders in accordance connection with the terms of this Agreement and the Escrow Agreement, including without limitation to the defense of any claims thereunder, as the Securityholders’ Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as the Securityholders’ Representative. The fees and Parent and Purchaser expenses incurred by the Securityholders’ Representative may rely on such appointment and authoritybe paid from the Securityholders’ Representative Escrow Funds. The Securityholders’ Representative shall be permitted to invest the Securityholders’ Representative Escrow Funds and shall be entitled to reimbursement from make distributions therefrom to itself to pay taxes, if any, incurred by the Securityholders’ Representative in connection with the such Persons investments.
(e) The Securityholders’ Representative is authorized to act on behalf of the Securityholders notwithstanding any and all fees, expenses and costs incurred in dispute or disagreement among the performance of such Securityholders. In taking any actions as Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any person he reasonably believes to be authorized thereunto. The Securityholders’ Representative may, in its sole discretionall questions arising hereunder, make payments out rely on the advice of counsel, and the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIII.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or anything done, omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered in good faith by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the based on such advice. The Securityholders’ Representative under undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and/or the Escrow Agreement and no implied covenants or obligations shall be read into this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of against the Securityholders’ Representative.
(ef) If ML Seller Rep LLC The Securityholders’ Representative shall not have any liability to any Securityholder for any action taken, suffered or omitted by him as Securityholders’ Representative without gross negligence or willful misconduct. The Securityholders shall, severally and not jointly, in accordance with their Pro Rata Percentage, indemnify, defend and hold the Securityholders’ Representative harmless from and against any loss, damage, Tax, liability and expense that may be incurred or paid by the Securityholders’ Representative arising out of or in connection with the acceptance or administration of his duties (except as caused by the Securityholders’ Representative’s gross negligence or willful misconduct), including the legal costs and expenses of defending the Securityholders’ Representative against any claim or liability in connection with the performance of his duties. The Securityholders’ Representative shall be entitled, but not limited, to such indemnification from the Securityholders’ Representative Escrow Funds before any distribution thereof to the Securityholders.
(g) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be the initial Securityholders’ Representative and shall serve as the Securityholders’ Representative until his resignation, which resignation shall not occur prior to the date that is fifteen (15) months after the Closing Date without the prior written consent of the Buyer, which consent will not be unreasonably withheld or delayed, or until he dies or otherwise becomes unable to serve perform his duties and responsibilities hereunder and under the Escrow Agreement. In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ resigns, dies or otherwise becomes unable to perform his obligations hereunder, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be deemed the Securityholders’ Representative. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ accepts his future appointment pursuant to this Section 9.10(g). In the event that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ resigns, dies or otherwise becomes unable to perform his duties and responsibilities hereunder and under the Escrow Agreement, whether before or after ▇▇▇▇▇▇▇ ▇▇▇▇▇▇’▇ resignation, death or such inability, then the Securityholders holding (or who held prior to the Closing) a majority of the Pro Rata Percentages held by the Securityholders as of the Closing Date shall select a new Securityholders’ Representative, such other Person or Persons may which new Securityholders’ Representative shall be designated by reasonably acceptable to the holders of Buyer. Each time a majority of the Company Preferred Sharesnew Securityholders’ Representative is appointed pursuant to this Agreement, and such Person or Persons shall succeed as the Securityholders’ Representativeaccept such position in writing.
Appears in 1 contract
Sources: Merger Agreement (Analogic Corp)
Securityholders’ Representative. (a) ML Seller Rep LLC will act as Securityholders’ Representative for all purposes under this Agreement. On the date By execution of this Agreement or the Joinder Agreement, each Holder authorizes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the Company hereby irrevocably appoints the "Securityholders’ ' Representative." The Securityholders' Representative is authorized and appointed by each Holder as each Securityholder’s true and lawful agenthis, representative her or its exclusive agent and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), fact to take do any and all actions on behalf things and to execute any and all Transaction Agreements, other than the Joinder Agreement, (which, for the avoidance of doubt, excludes any Employment Agreement or Non-Competition Agreement which such Holder may be a party to) or other papers, in such Holder's name, place and stead, in any way which such Holder could do if personally present, with respect to all matters which are the subject of the Securityholders Transaction Agreements, other than the Joinder Agreement, including, without limitation, (a) receiving or giving all notices, instructions, other communications, consents or agreements that may be necessary, required or permitted given thereunder, (b) amending or otherwise modifying this Agreement or any other Transaction Agreement, other than the Joinder Agreement, and (c) asserting, settling, compromising, waiving or defending, or determining not to assert, settle, compromise or defend, (i) any claim which any Holder may assert, or have the right to assert, against Parent, or (ii) any claim which a Parent Indemnitee may assert, or have the right to assert, against any Holder. Upon the receipt of written evidence satisfactory to Parent to the effect that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or any subsequent Securityholders' Representative) has died, become disabled, incapacitated or resigned, and that another Holder or other Person has been appointed as a substitute Securityholders' Representative by a majority in interest (based on Company Common Stock ownership immediately prior to the Effective Time) of the Holders or their successors, such Person shall be vested with the power and authority of a Securityholders' Representative as set forth in this Section 2.10 and Parent shall be entitled to rely on such substitute Securityholders' Representative to the same extent as it was entitled to rely upon the original Securityholders' Representative with respect to the matters covered by this Section 2.10. No Holder shall act with respect to any of the matters which are the subject of this Agreement except through the Securityholders' Representative. The Holders acknowledge and agree that Parent may deal exclusively with the Securityholders' Representative in respect of such matters, that the enforceability of this Section 2.10 is material to Parent, and that Parent has relied upon the enforceability of this Section 2.10 in entering into this Agreement. The Parties waive any and all claims against the Securityholders' Representative arising out of or in connection with his or her actions or failures to act in the capacity of the Securityholders' Representative under or in connection with this Agreement. ML Seller Rep LLC , the Transaction Agreements and the transactions contemplated hereby agrees to comply with and thereby except as may be caused by the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required gross negligence or willful misconduct of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following: (i) to receive, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion of the Securityholders’ Representative to accomplish any of the foregoing. As the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ ' Representative’s duties under this Agreement. For the avoidance of any doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of Parent Indemnitees are not hereby waiving any indemnification or other claims they may have against the Securityholders’ ' Representative Reserve in order to satisfy, in whole his or in part, any of her capacity as a Holder. The Holders shall jointly and severally indemnify the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIII.
(c) The Securityholders’ ' Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold him or her harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement Losses and Liabilities arising out of or in connection with his or her actions or failures to act under or in connection with this Agreement, the incurrence, payment, discharge Transaction Agreements and the transactions contemplated hereby and thereby except as may be caused by the gross negligence or settlement of any of the obligations of such holders. None willful misconduct of the Securityholders’ ' Representative. The Securityholders' Representative Indemnified Parties shall be liable to may at any Person who immediately prior time resign without liability by giving written notice of such resignation to the Effective Time held Company Shares in respect of such arrangements (or actions or omissions in connection therewiththe Surviving Corporation after the Merger) and the Parent.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep LLC will act Somerston Technologies Limited is hereby appointed as Securityholders’ Representative for all purposes under this Agreement. On the date of this Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative Representative, to act as each Securityholder’s true and lawful agent, representative the agent and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), to take any and all actions on behalf in- fact of the Securityholders required or permitted under or in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, and any such actions shall be binding on each such holder and shall include the following6th Wave Stockholders to: (i) give and receive notices and communications to receive, hold or from Parent and deliver to Parent Certificates and any other documents relating thereto the Surviving Corporation (on behalf of itself or any other Indemnified Party) relating to this Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such holdernotice or communication shall be given or received by an Indemnifying Party individually); (ii) authorize Parent and the Surviving Corporation to give effect the forfeiture of all or any portion of the Escrow Units in satisfaction of claims asserted by Parent and accept communications and notices the Surviving Corporation against the Escrow Units (on behalf of itself or any other Indemnified Party), including by not objecting to such holderclaims; (iii) object to defendany claims for indemnification under this Section 7, whether against the Escrow Units or directly against 6th Wave Stockholders pursuant to Section 7(e)(i)(B)(ii); (iv) consent or agree to, negotiate, agree to, enter into settlements and compromises of, and bring suit and comply with orders and awards of courts with respect to, any claims for indemnification under this Section 7, whether against such holderthe Escrow Units or directly against the 6th Wave Stockholders; (ivv) subject to defendthe terms and conditions hereof, negotiate, consent or agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to any amendment to, or waiver of any claims or disputes related to provision of, this Agreement on behalf of such holderthe 6th Wave Stockholders; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoing. As , in each case without having to seek or obtain the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons consent of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties Person under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIIcircumstance.
(c) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken as Securityholders’ Representative except expressly as set forth in this Agreement. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewith.
(d) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement
Securityholders’ Representative. (a) ML Seller Rep LLC will act By virtue of its approval of the Merger or submission of the Transmittal Documentation (as Securityholders’ Representative for all purposes under this Agreement. On the date of this Agreementapplicable), the Company hereby irrevocably each Securityholder designates and appoints the Securityholders’ Representative as each such Securityholder’s true and lawful agent, representative agent and attorney-in-fact, fact with full power in his, her or its name and on his, her or its behalf (and with full power of substitution), authority to take any and all actions on behalf of that the Securityholders required or permitted under or in connection with this Agreement. ML Seller Rep LLC hereby agrees to comply with the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, believes are necessary or appropriate under this Agreement for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement, as fully as if each Securityholder was acting on its own behalf, including full power and any authority on such actions shall be binding on each such holder and shall include the following: Securityholder’s behalf (i) to receive, hold give and deliver receive notices and communications and to Parent Certificates and any other documents relating thereto accept service of process on behalf of such holder; Securityholder, (ii) to give authorize, negotiate, compromise, settle, agree to and accept communications and notices on behalf of such holder; otherwise handle any adjustments to the Merger Consideration under this Agreement, (iii) to defendagree to, negotiate, agree to, enter into settlements and compromises of, and comply with orders judgments or order of courts or other Governmental Authorities and awards of courts arbitrators, with respect to, any claims by any Buyer Indemnitee against such holder; any Securityholder or by any Securityholder against any Buyer Indemnitee, or any other dispute between any Buyer Indemnitee and any Securityholder, in each case relating to this Agreement or the transactions contemplated by this Agreement, (iv) to defendconsummate the transactions contemplated herein, negotiate(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, agree (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, enter into settlements execute and compromises ofdeliver any amendment or waiver hereof on behalf of each such Securityholder, and comply with orders and awards of courts with respect to, (ix) to take all other actions to be taken by or any claims or disputes related to this Agreement on behalf of such holder; Securityholder in connection herewith, (vx) to receive authorize payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) be made with respect to amend, supplement, change or waive any provision of this Agreement, subject to compliance with Section 10.01 and Section 10.02; (viixi) to receive service of process on behalf of such holder in connection deal with any claims Buyer under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion of the Escrow Amount in satisfaction of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II all matters arising under this Agreement, (and in connection therewith calculating the portion of any adjustment in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (xxii) 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 necessary or appropriate in the sole discretion judgment of the Securityholders’ Representative to accomplish any for the accomplishment of the foregoingforegoing or are specifically mandated by the terms of this Agreement. As the representative of such holders, Notices or communications to or from the Securityholders’ Representative shall act as agent will constitute notice to or from each of the Securityholders for each such holder and shall have authority to bind each such holder in accordance with the terms of all purposes under this Agreement and except where the Escrow Agreement, and Parent and Purchaser may rely on such appointment and authority. The Securityholders’ Representative shall be entitled to reimbursement from such Persons of any and all fees, expenses and costs incurred in the performance of such Securityholders’ Representative’s duties under this Agreement. For the avoidance of doubt, the Securityholders’ Representative may, in its sole discretion, make payments out of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under this Agreement, including such obligations in Articles II and VIIIcontext otherwise requires.
(cb) The Securityholders’ Representative shall not be liable to any Securityholder for any act done or omitted to be taken may delegate its authority as Securityholders’ Representative except expressly as set forth to any one of the Securityholders (or their Affiliates) for a fixed or indeterminate period of time upon not fewer than two (2) Business Days’ prior written notice to Buyer in this Agreementaccordance with Section 9.2. The Persons who immediately prior to the Effective Time held Company Shares shall indemnify and hold harmless the Each successor Securityholders’ Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each has all of the foregoing (eachpower, a authority, rights and privileges conferred by this Agreement upon the original Securityholders’ Representative, and the term “Securityholders’ Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Representative” as used in this Agreement includes any successor Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Securityholders’ Representative under this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders. None of the Securityholders’ Representative Indemnified Parties shall be liable to any Person who immediately prior to the Effective Time held Company Shares in respect of such arrangements or actions or omissions in connection therewithRepresentative.
(dc) A decision, act, consent or instruction of the Securityholders’ Representative under or relating to this Agreement shall constitute acting on behalf of the Securityholders constitutes a decision for of all Persons who immediately prior to the Effective Time held Company Shares Securityholders (except where the context otherwise requires) and shall be is final, binding and conclusive upon each such Personthe Securityholders, and Parent Buyer and Purchaser any Indemnified Party may rely upon any such decision, act, consent or instruction of such the Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any the Securityholders.
(d) The Securityholders’ Representative will have no liability to any Person for any acts act done or omitted under this Agreement as the Securityholders’ Representative while acting in good faith and not in a manner constituting wanton misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Securityholders will severally indemnify and hold harmless the Securityholders’ Representative from and against any Losses the Securityholders’ Representative may suffer as a result of any such action or omission.
(e) The Securityholders’ Representative will receive no compensation for services as the Securityholders’ Representative. The Securityholders will reimburse, on a pro rata basis in proportion to their interest in the Merger Consideration, the Securityholders’ Representative for professional fees and expenses of any attorney, accountant or other advisors retained by them the Securityholders’ Representative and other reasonable out-of-pocket expenses incurred by the Securityholders’ Representative in accordance connection with such decision, act, consent or instruction the performance of the Securityholders’ Representative’s duties under this Agreement. An amount equal to $250,000 (the “Securityholders’ Rep Expense Fund”) will be deducted from the Closing Merger Consideration and delivered to the Securityholders’ Representative at the Closing to be held in trust as a source of such reimbursement for costs and out-of-pocket expenses (including Taxes and costs of professional advisers) incurred by the Securityholders’ Representative for its obligations in connection with this Agreement, with any balance of the Securityholders’ Rep Expense Fund not incurred for such purposes to be returned to the Securityholders on a pro rata basis.
(ef) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated This appointment and grant of power and authority by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as Securityholders to the Securityholders’ RepresentativeRepresentative pursuant to this Section 8.5 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the act of any Securityholder or by operation of law, whether upon the death or incapacity of any Securityholder, or by the occurrence of any other event.
Appears in 1 contract
Securityholders’ Representative. (a) ML Seller Rep LLC will Mx SR LLC, a Delaware limited liability company, is hereby appointed, authorized and empowered to act as Securityholders’ Representative for all purposes the representative of the Securityholders (the “Securityholders Representative”) hereunder and under this Agreement. On the date of this Escrow Agreement, the Company hereby irrevocably appoints the Securityholders’ Representative as each Securityholder’s true and lawful agent, representative and attorney-in-fact, with full power in his, her or its name and on his, her or its behalf (and with full power of substitution). Such appointment is not as an agent but as a term of the merger contemplated by this Agreement and accordingly such appointment is irrevocable by action of any Securityholder. The appointment made hereunder shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to take act of the principal pursuant to any applicable Law. In its capacity as Securityholders Representative, the Securityholders Representative:
(i) shall execute this Agreement, the Paying Agent Agreement, the Escrow Agreement and the Securityholders Representative Escrow Agreement;
(ii) commencing with the Effective Time, shall be authorized and empowered to do any and all actions of the following:
(A) receipt and forwarding of notices and communications pursuant to this Agreement or the other Transaction Documents;
(B) administration of the provisions of this Agreement, including the provisions relating to the matters described in Section 5.6, Section 9.1(e) and Article XI, and the other Transaction Documents, including the Escrow Agreement, and authorizing the release of funds from the Fixed Escrow Account;
(C) subject to the provisions of Section 13.7, giving or agreeing to, on behalf of the Securityholders, any and all consents or waivers deemed by the Securityholders required Representative, in its sole discretion, to be necessary or permitted appropriate under this Agreement or any other Transaction Document and the execution or delivery of any documents that may be necessary or appropriate in connection therewith;
(D) subject to the provisions of Section 13.7 and applicable Laws, amending this Agreement (other than this Section 2.4) or any other Transaction Documents, or any of the instruments to be delivered to Parent or Merger Sub pursuant to this Agreement or such Transaction Documents;
(E) (1) disputing or refraining from disputing any claim made by Parent, the Surviving Corporation or any other Parent Indemnitees under Section 11.2 or under or with respect to any other provision of any Transaction Document, (2) acting on behalf of Securityholders in any litigation or arbitration involving this Agreement (including the indemnification obligations set forth in Article XI) or any other Transaction Documents and negotiating and compromising, on behalf of each Securityholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents, and (3) executing, on behalf of each Securityholder, any settlement agreement, release or other document with respect to any such dispute or remedy;
(F) engaging attorneys, accountants, agents or consultants in connection with the foregoing and paying any fees related thereto; and
(G) doing any and all things deemed reasonably necessary or desirable by the Securityholders Representative in connection with the exercise of any of the foregoing powers and authorities.
(b) Notwithstanding Section 2.4(a), in the event the Securityholders Representative, with the advice of counsel, is of the opinion that it requires further authorization or advice from the Securityholders on any matters concerning this Agreement or the other Transaction Documents, the Securityholders Representative shall be entitled to seek such further authorization from the Securityholders prior to acting on their behalf. In such event, or in the event that a replacement Securityholders Representative is required to be appointed pursuant to Section 2.4(d) below, each Securityholder shall have such number of votes as is equal to such Securityholder’s Percentage Share and the authorization of a plurality of such number of votes shall be binding on all of the Securityholders and shall constitute the authorization of the Securityholders, except as may otherwise be required by applicable Laws.
(c) Parent, Merger Sub and the Surviving Corporation may conclusively and absolutely rely upon any act of the Securityholders Representative with respect to all matters referred to herein, including the execution and delivery by the Securityholders Representative of any document executed, or purported to be executed, on behalf of any of the Securityholders. Any decision or action by the Securityholders Representative hereunder shall constitute a decision or action of all of the Securityholders and shall be final, binding and conclusive upon each Securityholder, and no Securityholder shall have the right to object to, dissent from, protest or otherwise contest any such decision or action. Any notices required to be made or delivered to the Securityholders hereunder or under any other Transaction Documents shall be made or delivered to the Securityholders Representative for the benefit of the applicable Securityholders and the making or delivering of such notice to the Securityholders Representative shall discharge in full the applicable notice requirement.
(d) Mx SR LLC and any entity selected to replace Mx SR LLC pursuant to this Agreement, may resign as Securityholders Representative at any time by prior written notice delivered to Parent. If Mx SR LLC resigns from its capacity as Securityholders Representative, it shall provide prior notice of such resignation to ▇▇▇▇▇▇ Commodity Partners Fund LP and ▇▇▇▇▇▇ Commodity Partners Fund LP, or an Affiliate thereof, may, in its sole discretion, serve as the replacement Securityholders Representative upon written notice to Parent. If there is a vacancy at any time in the position of Securityholders Representative (including if ▇▇▇▇▇▇ Commodity Partners Fund LP, or an Affiliate thereof, declines to serve as Securityholders Representative pursuant to the foregoing sentence within ten (10) days following the resignation of Mx SR LLC as Securityholders Representative), the Person last serving as Securityholders Representative shall request from the Paying Agent a list of all Securityholders and the addresses on file with the Paying Agent for such Securityholders and shall deliver, within seven (7) Business Days of such Person’s receipt of such addresses, a notice to each such Securityholder at such address notifying the Securityholders (i) that a vacancy in the position of Securityholders Representative exists and (ii) to the extent any Securityholders have agreed to be appointed Securityholders Representative, of the names of such Securityholders. Following the delivery of such notice, the vacancy shall be filled by a vote of the Securityholders in accordance with Section 2.4(b). If at any time there is no Person acting as the Securityholders Representative and the Securityholders fail to fill such vacancy within thirty (30) days following the resignation of the then current Securityholders Representative, Parent may appoint (with the consent of the Securityholder to be appointed the Securityholders Representative) the Securityholders Representative from among the Securityholders; provided, however, that the Securityholders Representative shall not be a trust; and provided further, that the Percentage Share of the Securityholders Representative selected by Parent must be greater than one percent as of the Closing Date. In the event that Parent appoints a Securityholders Representative pursuant to the foregoing sentence (and such Securityholder agrees to such appointment), the Securityholders may revoke such appointment and appoint a replacement Securityholders Representative at any time in accordance with Section 2.4(b). In no event shall any Securityholder be obligated to accept an appointment by Parent to serve as Securityholders Representative.
(e) The Securityholders Representative acknowledges that it has carefully read and understands this Agreement and hereby accepts the appointment and designation made hereunder.
(f) The Securityholders Representative shall act for the Securityholders on all of the matters set forth herein in the manner the Securityholders Representative reasonably believes to be in the best interests of the Securityholders as a group and consistent with the obligations of the Securityholders Representative and the Securityholders under this Agreement. Notwithstanding the foregoing, the Securityholders Representative shall not be liable to Parent, Merger Sub, the Surviving Corporation or the Securityholders in its capacity as Securityholders Representative for any error of judgment, or any act done or step taken or omitted by it in good faith or for any mistake in fact or Law, or for anything that it may do or refrain from doing in connection with this Agreement, except for its own gross negligence or willful misconduct. ML Seller Rep LLC hereby agrees The Securityholders Representative shall not have any duties or responsibilities other than those expressly set forth in this Agreement, the Escrow Agreement or the Securityholders Representative Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Securityholders Representative. The Securityholders Representative shall be entitled to comply with rely, and shall be fully protected in relying, upon any statements furnished to it by the Company, the Surviving Corporation, any Securityholder, Parent or Merger Sub, or any other evidence deemed by the Securityholders Representative to be reliable. The Securityholders Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of Section 2.07.
(b) The Securityholders’ Representative shall have the authority, for and on behalf of Securityholders (except for the holders, if any, of Dissenting Company Shares), to take such actions and exercise such discretion as are required of the Securityholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreementany other Transaction Document or its duties hereunder or thereunder, and it shall incur no liability in its capacity as Securityholders Representative to Parent, the Surviving Corporation or any such actions Securityholder and shall be binding fully protected with respect to any action taken, omitted or suffered by it in accordance with the advice of such counsel. The Securityholders shall severally, based on each such holder Securityholder’s Percentage Share of the applicable liabilities, claims, actions, damages, losses and shall include expenses, indemnify and hold harmless and defend the following: Securityholders Representative, its Affiliates and its Representatives against any and all liabilities, claims, actions, damages, losses and expenses (including legal and other professional fees and expenses and litigation costs) arising out of or in connection with (i) the Securityholders Representative’s acts or omissions to receiveact, hold and deliver to Parent Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defendresulting from, negotiate, agree to, enter into settlements and compromises arising out of, and comply with orders and awards of courts incurred in connection with, or otherwise with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, or any claims or disputes related to this Agreement on behalf of such holder; (v) to receive payments on behalf of such holder due and owing pursuant to this Agreement and acknowledge receipt of such payments; (vi) to amend, supplement, change or waive any provision of this Agreement, subject the Escrow Agreement and the Securityholders Representative Escrow Agreement and (ii) actions or omissions otherwise reasonably believed to compliance with Section 10.01 and Section 10.02; (vii) to receive service of process on behalf of such holder be in connection with any claims under this Agreement or any related document or instrument; (viii) to determine whether the conditions to the Company’s obligations have been satisfied, including waiving any such conditions if the Securityholders’ Representative in its sole discretion determines that such waiver is appropriate; (ix) to authorize the release or delivery to Parent of all or any portion scope of the Escrow Amount Securityholders Representative’s authority; provided that, in satisfaction each case, such actions or omissions did not constitute gross negligence or willful misconduct.
(g) The Securityholders shall pay the Securityholders Representative an annual fee of $100,000 through the date on which all of the Securityholders’ obligations (if any) with respect to the post-Closing adjustments contemplated by Article II (and in connection therewith calculating the portion of any adjustment funds in the Securityholders’ favor that is payable to any Securityholder) and indemnification claims by any Parent Indemnified Party pursuant to Article VIII; and (x) to take any and all actions necessary or appropriate in the sole discretion of the Securityholders’ Representative to accomplish any of the foregoing. As the representative of such holders, the Securityholders’ Representative shall act as agent for each such holder and shall have authority to bind each such holder Fixed Escrow Account are finally disbursed in accordance with the terms of this Agreement and the Escrow AgreementAgreement for each year or any portion of a year it serves as Securityholders Representative, which such fee shall be deducted from the escrow account established pursuant to the terms of the Securityholders Representative Escrow Agreement for compensation and Parent reimbursement of the Securityholders Representative (the “Securityholders Representative Escrow Account”) and Purchaser may rely shall be paid in advance on the Closing Date and on each anniversary of the Closing Date. In addition to such appointment annual fee, the Securityholders shall reimburse the Securityholders Representative for any and authorityall costs, expenses and other liabilities incurred by the Securityholders Representative in connection with the performance of its duties under this Agreement and such costs and expenses shall be paid as a Transaction Cost if incurred and ascertainable prior to Closing, and, thereafter, in accordance with this Section 2.4(g). The Securityholders’ Securityholders Representative shall be entitled to reimbursement deduct any amounts from such Persons the Securityholders Representative Escrow Account necessary to satisfy the indemnification and payment obligations of the Securityholders pursuant to Sections 2.4(f)-(g). If at any and all fees, expenses and costs incurred time there are insufficient (or no) funds remaining in the performance of Securityholders Representative Escrow Account to pay such Securityholders’ Representative’s duties under this Agreement. For amounts, (A) the avoidance of doubtSecurityholders Representative may deduct any amount owing to it pursuant to Sections 2.4(f)-(g), or any amounts it reasonably believes may be payable to it in the Securityholders’ Representative mayfuture, from any amounts that have been finally determined to be distributable to the Securityholders from the Fixed Escrow Account or the Adjustment Escrow Account in its sole discretion, make payments out accordance with the terms of the Securityholders’ Representative Reserve in order to satisfy, in whole or in part, any of the Securityholders’ obligations under Escrow Agreement and this Agreement, and (B) if no such amounts are to be distributed to the Securityholders, or if such amounts are insufficient, the Securityholders shall reimburse the Securityholders Representative based on each Securityholder’s Percentage Share of such amounts owing to the Securityholders Representative. The Securityholders Representative shall have the right to deliver instructions to the Escrow Agent at any time to disburse funds to the Securityholders Representative from the Securityholders Representative Escrow Account or to withhold amounts that have been finally determined to be distributable to the Securityholders from the Fixed Escrow Account or the Adjustment Escrow Account in accordance with the terms of the Escrow Agreement and this Agreement, without the necessity of obtaining approval from any other Person (including any Securityholder); provided that such obligations in Articles II and VIIIinstructions comply with this Section 2.4(g).
(ch) The Securityholders’ Notwithstanding anything to the contrary in this Agreement:
(i) with respect to any provision of this Agreement that requires Parent or the Surviving Corporation to obtain the consent or approval of the Securityholders Representative after the Closing Date, if the Securityholders Representative fails to provide written notice of the Securityholders Representative’s consent or rejection within the later of (x) the time period provided for in the applicable provisions of this Agreement and (y) fifteen (15) Business Days after the date Parent or the Surviving Corporation, as applicable, requested such consent or approval, then the Securityholders Representative shall not be liable deemed to any Securityholder for any act done or omitted to be taken as Securityholders’ have rejected the request; and
(ii) if at anytime the Securityholders Representative except expressly as shall have resigned and no replacement Securityholders Representative shall have been designated in accordance with the terms of this Agreement (after the expiration of the applicable time periods set forth in Section 2.4(d), regardless of whether or not the Securityholders Representative has complied with, or taken the actions required by, Section 2.4(d)):
(A) any requirement in this Agreement. The Persons who immediately prior Agreement to deliver notice to the Effective Time held Company Shares Securityholders Representative shall indemnify and hold harmless the Securityholders’ Representative and its partnersbe deemed to be satisfied upon providing notice, stockholdersin accordance with Section 13.5, affiliates, directors, officers, fiduciaries, employees and agents of to each of the foregoing Securityholders at the applicable addresses on file with the Paying Agent; and
(eachB) Parent or the Surviving Corporation, a “Securityholders’ Representative Indemnified Party”) from and against all lossesas applicable, liabilities, claims or expenses incurred or suffered by the Securityholders’ Representative Indemnified Parties as a result of, or arising out of, or relating to may take any and all actions taken or omitted action that is to be taken by the Securityholders’ Securityholders Representative under or that requires the consent or approval of the Securityholders Representative pursuant to this Agreement if (1) Parent or the Escrow Agreement or in connection Surviving Corporation, as applicable, delivers written notice of its intention to take such action to each of the Securityholders at the applicable addresses on file with the incurrence, payment, discharge or settlement of any Paying Agent and (2) within fifteen (15) Business Days after the date of the obligations mailing of such holders. None written notice, Parent or the Surviving Corporation, as applicable, does not receive written notice from a replacement Securityholders Representative appointed in accordance with the terms of this Agreement objecting to Parent or the Securityholders’ Representative Indemnified Parties shall be liable Surviving Corporation, as applicable, taking such action; provided, that, if Parent’s or the Surviving Corporation’s inability to any Person who immediately take the applicable action prior to the Effective Time held Company Shares in respect delivery of notice to the Securityholders or the expiration of such arrangements or actions or omissions in connection therewith.
(d) A decision, act, consent or instruction of fifteen-Business Day period would materially prejudice the Securityholders’ Representative under or relating to this Agreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Company Shares and shall be final, binding and conclusive upon each such Person, and Parent and Purchaser may rely upon any such decision, act, consent or instruction of such Securityholders’ Representative as being the decision, act, consent or instruction of each such Person. Parent and Purchaser are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Securityholders’ Representative.
(e) If ML Seller Rep LLC becomes unable to serve as Securityholders’ Representative, such other Person or Persons may be designated by the holders of a majority of the Company Preferred Shares, and such Person or Persons shall succeed as the Securityholders’ Representative.righ
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