Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power: (i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings; (ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing; (iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses; (v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and (vi) to receive service of process in connection with any claims under this Agreement. (b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement
Shareholder Representative. (a) Each The Shareholder shall have the right, exercisable by delivering notice to the Company, to designate one individual to attend all meetings of the EquityholdersBoard in a non-voting, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact observer capacity (the “Shareholder Representative”), of ) for so long as (i) the Equityholders receiving consideration hereunder to act Shareholder and its Affiliates beneficially own in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as aggregate at least the Shareholder Representative shall deem necessary or appropriate Threshold Shareholding in connection with the transactions contemplated by this AgreementCompany, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate and its Affiliates comply in connection all material respects with the consummation provisions of the transactions contemplated by this Agreement;
Sections 2.1 (iiiStandstill), 3.2 (Investment Restrictions) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
3.3 (iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementTransfer Restrictions).
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice Company shall (i) provide to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative notice of all Board meetings and a copy of all materials provided to the members of the Board in all matters referred their capacity as such at the same time such materials are provided to herein. The the members of the Board, and (ii) take reasonable measures to facilitate the Shareholder Representative may act Representative’s attendance of any such meeting in reliance upon any instructionaccordance with this Section 3.1(b); provided, noticethat, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by notwithstanding any other person other than itself without being required to determine provision of this Section 3.1, (A) the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on agree to hold in confidence all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but information provided (provided that the Shareholder Representative shall not be responsible restricted in any confidential communications or discussions with or the confidential provision of information to the Equityholders for any Damages Shareholder and its Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Shareholder Representative, the Equityholders may suffer by Shareholder and its Affiliates shall, in each case to the performance of its duties sole extent that (x) the Shareholder is entitled to designate and has designated the Shareholder Representative pursuant to Section 3.1(a) and (y) such Shareholder Representative has all the rights and benefits under this Agreement, other than Damage arising be subject to the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures and shall sign an acknowledgement form stating the agreement to comply with such policies and procedures (it being understood that such ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies and procedures shall not restrict the Shareholder or its Affiliates from willful violation purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the law Exchange Act) and (C) the Shareholder Representative may be excluded from all or gross negligence a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Shareholder Representative at such meeting or any portion thereof or the receipt by the Shareholder Representative of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with the Shareholder or its Affiliates or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and the Shareholder or its Affiliates, on the other hand; it being understood that the Shareholder Representative shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.1(b), in the performance of its duties under this Agreement as determined by a non-appealable order event that any regular or judgment of a court or tribunal of competent jurisdiction. Each special meeting of the Equityholders Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.1(b), if the Shareholder Representative is given notice in the same form and manner as, and a copy of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Shareholder Representative’s attendance of any such meeting in accordance with this Section 3.1(b).
(c) The Company acknowledges and agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs not, acting solely in the capacity of an observer of the Board and expenses reasonably incurred by the Shareholder Representative on demand in connection compliance with actions taken by the Shareholder Representative pursuant this Section 3.2, owe to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of Company any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselfiduciary duty.
Appears in 2 contracts
Sources: Cooperation Agreement (Naspers LTD), Share Purchase Agreement (Naspers LTD)
Shareholder Representative. (a) Each of the EquityholdersThe Selling Parties, by virtue of the adoption their execution and delivery of this Agreement or, with respect to Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, hereby appoints GF Private Equity Group, LLC and shall will be deemed to have irrevocably constituted and appointed (and by its execution appointed, effective as of the date of this Agreement as Agreement, IBF (together with its permitted successors, the "Shareholder Representative"), GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive their true and lawful agent and attorney-in-fact (fact, and the “Shareholder Representative”), by its execution of this Agreement shall be deemed to have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement or the Escrow Agreement, to exercise all or any of the Equityholders receiving consideration hereunder powers, authority and discretion conferred on it under any such agreement, to act as proxy for each Selling Party in the name, place and stead of the Equityholders connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement (other than payment of the Merger Consideration due at Closing), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of and claim, action or proceeding for which any Shareholder, Purchaser, or the Merger Sub may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in accordance his capacity as Shareholder Representative either (i) with the terms and provisions consent of stockholders who, as of the date of this Agreement, and to act on behalf own a majority in number of the Equityholders outstanding shares of Company voting stock (considered on an as converted basis), or (ii) in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the absence of its own willful misconduct. If the Shareholder Representative shall deem necessary be unable or appropriate unwilling to serve in connection with the transactions contemplated such capacity, its successor shall be named by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders those persons holding at least a majority of outstanding the shares of Company Common Stock as of voting stock outstanding immediately prior to the Effective Time. Parent, Time who shall serve and exercise the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction powers of the Shareholder Representative in all matters referred hereunder. Solely with respect to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from in its capacity as such, the Shareholder Representative Expense Fund. In shall have no liability to Purchaser, the event such recovery is precluded Company or unattainable any of their respective affiliates except for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs claims based upon fraud or expenses suffered or incurred bad faith actions by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Acquisition Agreement (Ibf Vi Guaranteed Income Fund), Acquisition Agreement (Sunset Brands Inc)
Shareholder Representative. (a) Each By the execution and delivery of the Equityholders-------------------------- this Agreement, by virtue of the adoption of this Agreement including counterparts hereof, each Stockholder hereby irrevocably constitutes and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ III as the true, exclusive true and lawful agent and attorney-in-fact (referred to in this Agreement as the “Shareholder "Representative”), ") of the Equityholders receiving consideration hereunder such Stockholder with full powers of substitution to act in the name, place and stead of such Stockholder with respect to the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with performance on behalf of such Stockholder under the terms and provisions of this Agreement, as the same may be from time to time amended, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated by under this Agreement, including without limitation the power:
(i) to act for receive, hold and deliver to Central any of the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including certificates representing the power to compromise Shares and any indemnity claim other documents relating thereto on behalf of the Company Shareholders and to transact matters of litigation or other Proceedingssuch Stockholder;
(ii) to receive on behalf of such Stockholder any shares of Central Common Stock issued or cash paid to such Stockholder pursuant to this Agreement;
(iii) to execute and deliver all amendmentsAncillary Agreements, waiverscertificates, ancillary agreements, stock powers, certificates and documents that which the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by the terms and provisions of this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment act for such expensesStockholder with respect to all indemnification matters referred to in this Agreement, including the right to compromise or settle any such claims on behalf of such Stockholder;
(v) to amend or waive any provision of this Agreement (including any condition to Closing) in any manner which does not differentiate among the Stockholders;
(vi) to employ and obtain the advice of legal counsel, accountants and other professional advisors as the Representative, in his sole discretion, deems necessary or advisable in the performance of his duties as Representative and to rely on their advice and counsel;
(vii) to incur any expenses, to liquidate and withhold assets received on behalf of the Stockholders prior to their distribution to the Stockholders to the extent of any amount which the Representative deems necessary for payment of or as a reserve against expenses, and to pay such expenses or to deposit the same in an interest-bearing bank account established for such purpose;
(viii) to receive all notices, communications and deliveries hereunder on behalf of such Stockholder under this Agreement; and
(ix) to do or refrain from doing any further act or deed on behalf of such Stockholder which the Equityholders that the Shareholder Representative deems necessary or appropriate in its his sole discretion relating to the subject matter of this Agreement as fully and completely as any of the Equityholders Stockholders could do if personally present; and
(vi) present and acting and as though any reference to receive service of process a Stockholder or the Stockholders in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice Agreement were a reference to the Surviving Corporation by Representative. The appointment of the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentRepresentative shall be deemed coupled with an interest and shall be irrevocable, the Surviving Corporation and Central and any other Person person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction action of the Shareholder Representative as the act of the Stockholders in all matters referred to hereinin this Agreement. Each Stockholder hereby ratifies and confirms all that the Representative shall do or cause to be done by virtue of his appointment as Representative of such Stockholder. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders Stockholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests interest of the Equityholders and consistent with the obligations under this AgreementStockholders, but the Shareholder Representative shall not be responsible to the Equityholders any Stockholder for any Damages the Equityholders loss or damage any Stockholder may suffer by reason of the performance by the Representative of its his duties under this Agreement, other than Damage loss or damage arising from willful violation misconduct in the performance of his duties under this Agreement. Each of the law Stockholders hereby expressly acknowledges and agrees that the Representative is authorized to act on behalf of such Stockholder notwithstanding any dispute or gross negligence disagreement among the Stockholders, and that Central shall be entitled to rely on any and all action taken by the Representative under this Agreement without liability to, or obligation to inquire of, any of the Stockholders. If the Representative resigns or ceases to function in such capacity for any reason whatsoever, then the Stockholder which held a majority of the Shares on the date hereof shall appoint a successor; provided, however, that if for any reason no successor has been appointed within thirty (30) days, then any Stockholder shall have the right to petition a court of competent jurisdiction for appointment of a successor. The Stockholders do hereby jointly and severally agree to indemnify and hold the Representative harmless from and against any and all liability, loss, cost, damage or expense (including without limitation attorneys' fees) reasonably incurred or suffered as a result of the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable except for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselmisconduct.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Pennington Brooks Iii), Agreement and Plan of Reorganization (Central Garden & Pet Company)
Shareholder Representative. (a) Each of the Equityholders, by 4.1. By virtue of the execution or adoption of this Agreement Agreement, each Shareholder irrevocably approves the constitution and thereby appointment of, and hereby irrevocably constitutes and appoints N▇▇▇ ▇▇▇▇▇ (the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as “Shareholder Representative”) with all the rights, GF Private Equity Grouppowers and obligations contemplated by this Section 4, LLC hereby accepts its appointmentand any successor Shareholder Representative(s) designated under this Section 4 as the truesole, exclusive exclusive, true and lawful agent agent, representative and attorney-in-fact (the “Shareholder Representative”)for and on behalf of all Shareholders, and each of the Equityholders receiving consideration hereunder them, with respect to act in the name, place any and stead all matters arising out of the Equityholders or in connection with this Agreement (excluding pursuant to Section 10.2), the transactions contemplated Paying Agent Agreement, the Escrow Agreement and the agreements ancillary hereto following the Closing and taking any action or omitting to take action on behalf of all Shareholders or each of them hereunder or under the Escrow Agreement or the Paying Agent Agreement. All actions, notices, communications and determinations by or on behalf of the Shareholders in accordance herewith shall be given or made by the Shareholder Representative and all such actions, notices, and determinations by the Shareholder Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any and all Shareholders.
4.2. Without limiting the generality of the foregoing, the Shareholder Representative shall have full power and authority to: from and after the Closing, direct the Paying Agent to disburse amounts paid to the Paying Agent in accordance with the Waterfall and this Agreement, and such portion of the Escrow Amount as is remaining at the end of the escrow period contemplated under Section 2.8, in accordance with the Waterfall and in accordance with the terms and provisions conditions of this Agreement and the Escrow Agreement; to negotiate and sign all documents in connection with the Transaction and amendments thereto, whether before or after Closing (including, without limitation, Escrow Agreement, the Payment Agent Agreement, share transfer deeds and endorsements and termination instruments and including amendments that may require price reductions or holdbacks); and to act on behalf of the Equityholders in any Proceeding involving this Agreementgrant, to do or refrain from doing provide, negotiate and sign all such further acts waivers, consents, instructions and things, authorizations and to execute take all such documents as the Shareholder Representative shall deem other actions called for under or contemplated by or that may otherwise be necessary or appropriate in connection with the transactions contemplated by Transaction Documents; and to prosecute, defend and settle in the Shareholder Representative’s discretion all indemnification disputes (including hiring counsel and other litigation assistance and including in court of law or any other legal proceeding) and to receive all notices, requests and demands that may be made under and pursuant to this Agreement, including the power:
(i) to act for Paying Agent Agreement and the Equityholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders . From and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of Purchaser shall be entitled to deal exclusively with the Shareholder Representative in respect of any matter arising under the Transaction Documents, and the Shareholders, in their relationship with the Purchaser, shall be bound by all matters referred actions taken by the Shareholder Representative in connection with such matters. By virtue of executing or adopting this Agreement, each Shareholder agrees to hereinratify and confirm, and hereby ratifies and confirms, any action taken by the Shareholder Representative in the exercise of the power of attorney granted to the Shareholder Representative pursuant to this Section 4.2, which power of attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of each such Shareholder.
4.3. The Shareholder Representative may act resign at any time. Should the Shareholder Representative die, become legally incapacitated or bankrupt, dissolve, liquidate or otherwise similarly be unable or unwilling to serve or to appoint his or her successor to serve in reliance upon any instructionhis or her stead, noticethe Shareholders who have held, certificationimmediately prior to the Closing, demand, consent, authorization, receipt, the majority of the voting power of attorney the Company on an as converted basis shall designate in writing to Purchaser within five (5) Business Days a single Person to replace the deceased or other legally incapacitated or otherwise similarly unable Shareholder Representative as the successor Shareholder Representative hereunder. If at any time there shall not be a Shareholder Representative and the Shareholders fail to designate in writing a successor Shareholder Representative within five (5) Business Days after receipt of a written request delivered by Purchaser to it by any other person other than itself without being required the Shareholders requesting that a successor Shareholder Representative be designated, then Purchaser may petition a court of competent jurisdiction to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or orderappoint a Shareholder to act as new Shareholder Representative hereunder. The Shareholder Representative may act in reliance upon any signature believed by it Representative’s engagement shall terminate following the completion of all the Shareholder Representative’s responsibilities under this Agreement (including with respect to be genuine, and may assume that such person has been properly authorized to do sopotential or contingent liabilities of the Shareholders hereunder).
4.4. The Shareholder Representative shall not be liable to the Shareholders for any act for the Equityholders on all of the matters set forth done or omitted hereunder in this Agreement in the manner its capacity as the Shareholder Representative believes Representative, except to be the extent caused by its willful misconduct, gross negligence or bad faith. In all questions arising in the best interests respect of the Equityholders and consistent with the obligations any matter arising under this Agreement, but the Shareholder Representative may rely on the advice of counsel and any action based upon such reliance shall relieve the Shareholder Representative of any liability hereunder. The Shareholders shall severally and not jointly (based on each Shareholder’s pro rata share in accordance with the Waterfall compared to the pro rata shares of all Shareholders signing this Agreement or otherwise bound hereby; provided that, for the avoidance of doubt, in all cases the aggregate of the Shareholder Representative’s indemnity coverage from the Shareholders signing this Agreement or otherwise bound hereby shall sum to 100%) indemnify and defend the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability, deficiency, damage, cost, claim, penalty, fine, forfeiture, or expense (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment), or actions incurred by the Shareholder Representative and arising out of or in connection with the acceptance, performance or administration of the Shareholder Representative’s duties hereunder and under the Transaction Documents (collectively, “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the fraud, willful misconduct, gross negligence or bad faith on the part of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such fraud, willful misconduct, gross negligence or bad faith. If not paid directly to the Shareholder Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund, (ii) the funds in the Escrow Amount at such time as such amounts would otherwise be distributable to the Shareholders, and (iii) any other funds that become payable to the Shareholders under this Agreement at such time as such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-recourse parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement (including in Section 10.8) are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section 4.4.
4.5. The Purchaser shall not be responsible liable to any Shareholder for any act done or omitted hereunder by the Shareholder Representative.
4.6. A total of US$100,000 shall be withheld from amounts otherwise payable at Closing to the Equityholders for any Damages the Equityholders may suffer Shareholders contributed by the performance of its duties under this Agreement, other than Damage arising from willful violation Purchaser on behalf of the law or gross negligence in Shareholders to the performance of its duties under this Agreement as determined Escrow Agent for an account maintained by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each the Escrow Agent for the benefit of the Equityholders agrees that Shareholder Representative, for the Escrow Agent to hold on behalf of the Shareholders as a fund for the fees and expenses of the Shareholder Representative incurred in connection with this Agreement and the agreements ancillary hereto (the “Expense Fund”). All amounts deposited to the Expense Fund shall be entitled treated for all purposes as having been paid at Closing to recover the Shareholders and received and voluntarily set aside by the Shareholders at Closing. The Shareholders will not receive any indemnifiable interest or earnings on the Expense Fund and irrevocably transfer and assign to the Shareholder Representative any ownership right they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholder 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 amounts hereunder or other out-of-pocket costs deposited in the Expense Fund shall be available for the payment of all fees and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative performing its duties under this Agreement or and the agreements ancillary hereto; provided that any portion of the Expense Fund not ultimately required for the payment of such fees and expenses shall be delivered by the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment Agent to the Paying Agent for further distribution to the Shareholders based on the Waterfall following the completion of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation responsibilities. All amounts remaining in the Expense Fund upon termination of the law or gross negligence Shareholder Representative’s engagement (and following the completion of the Shareholder Representative’s responsibilities) shall also be delivered by the Escrow Agent to the Paying Agent for further distribution to the Shareholders based on the Waterfall.
4.7. To the extent required in order for the performance Company to exercise rights on behalf of its duties under the Shareholders prior to Closing pursuant to this Agreement. The Shareholder Representative may consult with legal counsel , including the exercise of its selection in the event right to waive rights or termination this Agreement pursuant to Section 3 above, the provisions of any dispute or question as this Section 4 shall apply, mutatis mutandis, to the meaning or construction of any of the provisions hereof or its duties hereunder, and Company (as if it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselwas a Shareholder Representative).
Appears in 2 contracts
Sources: Share Purchase Agreement (Oddity Tech LTD), Share Purchase Agreement (Oddity Tech LTD)
Shareholder Representative. (a) Each By virtue of their approval of the Equityholders, by virtue of the adoption of this Agreement Transaction and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement Agreement, each of the Shareholders shall be deemed to have agreed to appoint Partech International Partners SAS as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementShareholders to give and receive notices and communications, to do authorize payment to any Purchaser Indemnified Party from the Escrow Fund in satisfaction of claims by any Purchaser Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of any Disputes, and demand resolution or refrain from doing all Disputes in accordance with Section 11.8 and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Purchaser Indemnified Party against any Shareholder or by any such further acts Shareholder against any Purchaser Indemnified Party or any Dispute between any Purchaser Indemnified Party and thingsany such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority Shareholder Representative (“Shareholder Representative Expenses”). The Shareholder Representative shall have the right to withhold Shareholder Representative Expenses actually incurred from its distribution of outstanding shares of Company Common Stock as of immediately prior the Escrow Fund to the Effective TimeShareholders, provided that a certificate setting forth the Shareholder Representative Expenses actually incurred accompanies any such distribution. ParentA decision, act, consent or instruction of the Surviving Corporation Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.3 and any other Person Section 10.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon Escrow Agent and Purchaser are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Shareholder Representative. (a) Each The shareholders of the EquityholdersData Labs, by virtue -------------------------- of their approval of the adoption of this Agreement and thereby under the Merger by the Company Shareholder ApprovalDelaware Corporation Law, hereby appoints GF Private Equity Group, LLC and shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ as a committee, effective as of the Effective Time (and by its execution of this Agreement together with such person's permitted successors, the "SHAREHOLDER REPRESENTATIVE"), as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive their true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders enter into any agreement in connection with the transactions contemplated by this Agreement, including, without limitation, the resolution of indemnity claims under Article IX hereof and in accordance with the terms and provisions of this Escrow Agreement, and to act on behalf of any transactions contemplated by the Equityholders in any Proceeding involving this Escrow Agreement, to do exercise all or refrain from doing all any of the powers, authority and discretion conferred on it under any such further acts agreement, to waive any terms and thingsconditions of any such agreement (other than the consideration to be received by the Data Labs shareholders in the Merger), to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or proceeding for which Yurie or the Company may be entitled to indemnification and the Shareholder Representative agrees to act as, and to execute all undertake the duties and responsibilities of, such documents agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The members constituting the Shareholder Representative shall act by majority vote or consent. The Shareholder Representative shall not be liable for any action taken or not taken by it in connection with its obligations under this Agreement (i) with the consent of shareholders who, as of the Effective Time, owned a majority in number of the outstanding shares of Data Labs Common Stock (treating the Data Labs Preferred Stock on an as converted basis) or (ii) in the absence of its own gross negligence or willful misconduct. If one or more of the members of the committee acting as the Shareholder Representative shall deem necessary be unable or appropriate unwilling to serve in connection with the transactions contemplated such capacity, any successor thereof shall be named by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf those persons holding two-thirds of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company the Data Labs Common Stock as of immediately prior to (treating Data Labs Preferred Stock on an as-converted basis) at the Effective Time. Parent, and the Surviving Corporation successor(s) so named shall serve and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction exercise the powers of the Shareholder Representative in all matters referred to hereinhereunder. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power If such committee is composed of attorney one person and no other members thereto are so named within 30 days of the resignation or other writing delivered to it by any other person other than itself without being required to determine termination of the authenticity or validity thereof or the correctness of any fact stated thereinlast resigning member thereof, the propriety or validity remaining member of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative committee shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement serve as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Merger Agreement (Yurie Systems Inc), Merger Agreement (Yurie Systems Inc)
Shareholder Representative. (a) Each of the EquityholdersParties agrees that the Shareholder Representative may enforce, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementCompany, to do or refrain from doing all such further acts and things, and to execute all such documents as the Company’s rights under Section 4.7. The Shareholder Representative shall deem necessary is also entitled to initiate or appropriate otherwise file any Action in connection with the transactions courts contemplated by this Agreement, including the power:
(i) to act for the Equityholders Section 9.5 with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim respect thereto on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionCompany. Each of the Equityholders Parties acknowledges and agrees that the Shareholder Representative shall be entitled to recover receive at the same time as received by the Company any indemnifiable amounts hereunder notices required to be delivered to the Company with respect to Section 4.7, including, but not limited to, the Adjustment Dispute Notice.
(b) To the maximum extent permitted by applicable Law, the Company irrevocably appoints and grants the Shareholder Representative, in its capacity as a Shareholder Representative, with full power, as the Company’s true and lawful representative, agent and attorney-in-fact, in the Company’s name, place and stead, with full power of substitution, to, from and after the Closing, (i) negotiate any disputes with the Parent with respect to the Disputed Merger Consideration, including on behalf of holders of Company Stock and Company Equity Awards, (ii) bring any claim or Action on behalf of the Company against the Parent with respect to Section 4.7, (iii) defend any claim or action by Parent, on behalf of the Company with respect to the Disputed Merger Consideration or otherwise exercise or enforce any of the Company’s rights under Section 4.7 against the Seller, including on behalf of holders of Company Stock and Company Equity Awards, (iv) execute and deliver all instruments, deeds, agreements, documents and certificates necessary, advisable or appropriate in the discretion of the Shareholder Representative, as the case may be, to effectuate any of the foregoing, and (v) direct the Escrow Agent to pay all or a portion of the Disputed Merger Consideration in accordance with Section 4.7(h)(iii). The agency and powers of attorney granted herein shall be deemed to be coupled with an interest, shall be irrevocable except that such grant shall automatically terminate with respect to a Person when it is no longer serving as a Shareholder Representative.
(c) Any decision, act, consent, approval or instruction of the Shareholder Representative (then serving at such time) properly given or made pursuant to this Section 9.19 shall constitute a decision, act, consent, approval or instruction of the Company and shall be final, binding and conclusive upon Parent, and the other out-of-pocket costs and expenses reasonably incurred Parties hereto shall be entitled to conclusively rely upon any representation of the Shareholder Representative with respect to any act, decision, consent, approval or instruction of the Shareholder Representative. Neither the Shareholder Representative, nor any of its officers, directors, employees, partners (general or limited), members, managers or advisors will have any liability to Parent, Merger Subs, or the Company, or any of their respective Affiliates, or any Person acting on behalf of the foregoing, with respect to actions taken, or omitted to be taken, by the Shareholder Representative on demand in such capacity (or its officers, directors, employees, partners (general or limited), members, managers or advisors in connection with actions taken therewith), except that a Shareholder Representative will be liable for its fraud as finally determined by a court of competent jurisdiction. The Shareholder shall be entitled to full reimbursement from Parent for all reasonable and documented expenses, disbursements and advances (including fees and disbursements of its external advisors) incurred by or on behalf of the Shareholder Representative pursuant to in such capacity.
(d) In the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from event that the Shareholder Representative Expense Fund. In the event resigns, such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fundshall be deemed automatically removed and the Company, each on the recommendation of the Equityholders severally Special Committee, shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against promptly appoint a Person to replace such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.[Signature Page Follows]
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vacasa, Inc.), Agreement and Plan of Merger (Vacasa, Inc.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, Indemnifying Persons hereby appoints GF Private Equity GroupOrbiMed Israel Partners, LLC and shall have irrevocably constituted and appointed (and by Limited Partnership, as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)fact, of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim and on behalf of the Company Shareholders Indemnifying Persons to give and receive notices and communications, to authorize settlements from the Escrow Shares in satisfaction of Losses incurred by the Innovate Indemnified Parties and to transact matters resolve disputes with respect thereto, to object to claims for indemnification, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of litigation or courts and awards of arbitrators with respect to such claims, and to take all other Proceedings;
actions that are either (iii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation judgment of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses accomplishment of the Equityholders and apply such funds in payment for such expenses;
foregoing or (vii) to do specifically mandated or refrain from doing any further act or deed on behalf allowed by the terms of this Agreement. No bond shall be required of the Equityholders that Shareholder Representative, and the Shareholder Representative deems necessary shall not receive any compensation for its services. Notices or appropriate in its sole discretion relating communications to or from the subject matter of this Agreement as fully and completely as Shareholder Representatives’ shall constitute notice to or from the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementCompany Shareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice to reasonable judgment. The Company Indemnifying Persons shall indemnify the Surviving Corporation Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder Representative, shall constitute a decision of the Company Shareholders holding at least a majority of outstanding shares of Indemnifying Persons and shall be final, binding and conclusive upon the Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation Indemnifying Persons and any other Person Innovate may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionas being the decision, noticeact, certification, demand, consent, authorization, receipt, power of attorney consent or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity instruction of the service thereofIndemnifying Persons. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or the jurisdiction instruction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but Representative.
(d) If the Shareholder Representative shall not die, become disabled, dissolve, resign or otherwise be responsible unable or unwilling to fulfill its responsibilities as representative and agent of Company Shareholders, then the Equityholders Company Shareholders shall, within ten (10) days after such death, disability, dissolution, resignation or other event, appoint a successor Shareholder Representative (by vote or written consent of the Company Shareholders holding in the aggregate Pro Rata Shares in excess of fifty percent (50%)), and promptly thereafter (but in any event within two (2) Business Days after such appointment) notify Innovate in writing of the identity of such successor. Any such successor so appointed shall become the “Shareholder Representative” for any Damages the Equityholders may suffer by the performance purposes of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Merger Agreement (Innovate Biopharmaceuticals, Inc.), Merger Agreement (Innovate Biopharmaceuticals, Inc.)
Shareholder Representative. (a) Each As of the EquityholdersEffective Time, by virtue without further act of any holder of Company Shares, the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and Representative shall have irrevocably constituted and be appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)for each holder of Company Shares, to give and receive notices and communications and to take any and all action on behalf of the Equityholders receiving consideration hereunder holders of Company Shares pursuant to act in the name, place this Agreement and stead of the Equityholders in connection with the transactions contemplated Parent Notes, including, but not limited to, asserting, prosecuting or settling any claim against the Surviving Corporation or Parent or defending or settling any claim asserted by this Agreement, in accordance with the terms and provisions Surviving Corporation or Parent. Such Shareholder Representative may be changed by the consent of this Agreement, and to act on behalf holders representing a majority of the Equityholders Company Shares immediately prior to the Effective Time from time to time upon written notice given to the Surviving Corporation and the Shareholder Representative. Any vacancy in the position of Shareholder Representative may be filled by the remaining Shareholder Representative, if any, subject to the right of holders representing a majority of the outstanding Company Shares immediately prior to the Effective Time to replace any Proceeding involving this Agreement, Shareholder Representative so appointed. No bond shall be required of the Shareholder Representative. Notices or communications to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary constitute notice to or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf from each of the holders of Company Shareholders and Shares. The Shareholder Representative shall not be liable to transact matters of litigation any Shareholder or other Proceedings;
(ii) Person for any action taken, or declined to execute be taken, in good faith and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that in the Shareholder Representative deems necessary or appropriate in connection with the consummation exercise of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementreasonable judgment.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentA decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative (acting in its capacity as the Shareholder Representative) shall constitute a decision of all matters referred to herein. The Shareholder Representative the holders of Company Shares and shall be final, binding and conclusive upon each of such holders, and the Surviving Corporation and Parent may act in reliance rely upon any instructionsuch decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to as being the decision, act, consent or instruction of each such holder of Company Shares.
(c) $250,000 from the aggregate Cash Consideration Per Share shall be in placed by Parent at Closing into an escrow account (the best interests of "Shareholder Representative Holdback Account") with Park Cities Bank, Dallas, Texas (the Equityholders and consistent with the obligations under this Agreement"Holdback Escrow Agent"), but which amount shall be made available for use by the Shareholder Representative shall not be responsible to for the Equityholders for any Damages costs and expenses, including, without limitation, the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation costs of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs Holdback Escrow Agent and expenses reasonably legal fees, incurred by the Shareholder Representative on demand in connection with actions taken by fulfilling the duties of such position hereunder, including without limitation those duties set forth in Section 7.7 hereof. Any funds remaining in the Shareholder Representative Holdback Account on the date of the last payment payable under the Parent Notes shall be distributed on a Pro Rata Basis to holders of Company Shares who have duly surrendered or who may duly surrender their Company Stock Certificates pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselSection 2.5(b).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Eriksen Rochelle K.), Merger Agreement (Medsolutions Inc)
Shareholder Representative. (a) Each of D. E. Shaw Composite Side Pocket Series I, L.L.C. is hereby appointed to serve as the Equityholders, by virtue of initial Shareholder Representative with respect to the adoption of matters expressly set forth in this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (Article X and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC signature below it hereby accepts its appointment) as the true, exclusive acknowledges such appointment and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder agrees to act serve in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with such capacity on the terms and provisions subject to the conditions set forth herein. Effective only upon the Effective Time, the Shareholder Representative (including any successor or successors thereto) shall act as the representative of this Agreementthe Former Company Stockholders, and shall be authorized to act on behalf of the Equityholders in Former Company Stockholders and to take any Proceeding involving and all actions required or permitted to be taken by the Shareholder Representative under this AgreementArticle X with respect to any claims (including the settlement thereof) made by any Buyer Indemnitee for indemnification pursuant to this Article X (including, without limitation, the exercise of the power to do or refrain from doing all such further acts agree to, negotiate, enter into settlements and thingscompromises of, and comply with orders of courts with respect to, any claims for indemnification). The Shareholder Representative shall be the only party entitled to execute all such documents as assert the rights of the Former Company Stockholders hereunder and the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf perform all of the obligations (other than payment) of the Former Company Shareholders Stockholders under this Article X. Any Person shall be entitled to rely on all statements, representations and to transact matters decisions of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementRepresentative.
(b) The Shareholder Representative may Former Company Stockholders shall be removed or replaced only upon delivery of written notice to the Surviving Corporation bound by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of all actions taken by the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionhis, notice, certification, demand, consent, authorization, receipt, power of attorney her or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service its capacity thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth promptly, and in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreementany event within 10 Business Days, but the Shareholder Representative shall not be responsible provide written notice to the Equityholders for Former Company Stockholders of any Damages the Equityholders may suffer by the performance action taken on behalf of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken them by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from authority delegated to the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from under this Article X. Neither the Shareholder Representative Expense Fundnor any of its directors, each officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Shareholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the Equityholders terms, covenants or conditions of this Agreement.
(c) Each Former Company Stockholder shall, severally shall indemnify and not jointly, hold harmless and shall reimburse the Shareholder Representatives Representative from and against such EquityholderFormer Company Stockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative) suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement; provided, other than however, that no such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment Former Company Stockholder shall be so liable in excess of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representativesuch Former Company Stockholder’s willful violation pro rata portion of the law or gross negligence in the performance of its duties under this AgreementMerger Consideration. The Shareholder Representative may consult with legal counsel of its selection in the event of shall not be entitled to any dispute or question as to the meaning or construction of any of the provisions hereof compensation for his, her or its duties hereunder, and it shall incur no liability to the Equityholders services in acting in accordance with the opinion and instructions of such counselcapacity.
Appears in 2 contracts
Sources: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Shareholder Representative. (a) Each The Shareholders agree to appoint one Person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement (the "Shareholder Representative"). The parties have designated Goelet, LLC as the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed at any time by the vote of Shareholders who collectively own more than 50% of the Equityholders, by virtue Registrable Securities at such time (the "Majority Holders"). In the event of the adoption death, resignation or removal of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Groupa new Shareholder Representative shall be appointed by a vote of Majority Holders, LLC hereby accepts its appointment) as such appointment to become effective upon the true, exclusive and lawful agent and attorney-in-fact (written acceptance thereof by the “new Shareholder Representative”). Any failure by the Majority Holders to appoint a new Shareholder Representative upon the death, resignation or removal of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with not have the transactions contemplated by this Agreement, including effect of releasing the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise Shareholders from any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims liability under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice shall have such powers and authority as are necessary to carry out the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior functions assigned to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred under this Agreement; provided, however, that the Shareholder Representative will have no obligation to act on behalf of the Shareholders, except as expressly provided herein. The Shareholder Representative may act in reliance upon will at all times be entitled to rely on any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine directions received from the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or orderMajority Holders. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineshall, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for at the Equityholders on all expense of the matters set forth Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in this Agreement connection with exercising their powers and performing their function hereunder and (in the manner absence of bad faith on the part of the Shareholder Representative believes Representative) shall be entitled to be in conclusively rely on the best interests opinions and advice of the Equityholders and consistent with the obligations under this Agreement, but the such Persons.
(c) The Shareholder Representative shall not be responsible entitled to the Equityholders any fee, commission or other compensation for any Damages the Equityholders may suffer by the performance of its duties under this Agreementservices hereunder, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative but shall be entitled to recover any indemnifiable amounts hereunder the reimbursement by the Shareholders of all his, her or other out-of-pocket costs its fees and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by as the Shareholder Representative pursuant to Section 4.2 hereof. In connection with this Agreement, and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from powers conferred upon the Shareholder Representative Expense Fundhereunder, the Shareholder Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each Shareholder shall indemnify, pro rata based upon such holder's percentage interest, the Shareholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Shareholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholder Representative hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative to the Shareholders as to the existence of a deficiency toward the payment of any such recovery is precluded or unattainable for over thirty days after demand thereof from indemnification amount, each such holder shall promptly deliver to the Shareholder Representative Expense Fund, each full payment of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s his or her ratable share of the amount of such deficiency, in accordance with such Shareholder's percentage interest. In no event shall the Company be responsible for any reimbursement or indemnification of the Shareholder Representative.
(d) All of the indemnities, immunities and all liabilitiespowers granted to the Shareholder Representative under this Agreement shall survive the termination of this Agreement.
(e) Notwithstanding anything herein to the contrary, losses, damages, claims, costs each Shareholder hereby acknowledges that the Company shall not have any responsibility or expenses suffered obligation whatsoever to any such Shareholder or incurred to any other party with respect to or arising out of any actions taken or any inaction by the Shareholder Representative arising out of or resulting from any action Representative.
(f) The Company shall have the right to rely conclusively upon all instructions, requests, consents, elections and other actions taken or omitted to be taken by the Shareholder Representative under pursuant to this Agreement and any instrument, agreement or document relating hereto, all of which actions or omissions shall be legally binding upon all the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselShareholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Goelet LLC), Registration Rights Agreement (Pogo Producing Co)
Shareholder Representative. (a) Each For purposes of this Agreement, the Sky Shareholders hereby designate M▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as the sole and exclusive representative of the Equityholders, by virtue of Shareholders (the adoption “Shareholder Representative”) with respect to those provisions of this Agreement and thereby that contemplate action by the Shareholder Representative, including ancillary agreements such as the Merger by the Company Note, Guaranty and Security Agreement; provided, however, that if M▇▇▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement Representative or resigns as Shareholder Representative, GF Private Equity Groupthen [Name] shall serve as successor Shareholder Representative. Each successor Shareholder Representative, LLC if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(a) The Shareholder Representative is hereby accepts its appointment) constituted and appointed as the true, exclusive and lawful agent and attorney-in-fact (for and on behalf of the “Sky Shareholders with respect to the performance of his or her duties as the Shareholder Representative”). This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Sky Shareholder, by operation of Law, whether by such Sky Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Sky Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the Equityholders receiving consideration hereunder to act in foregoing, the nameShareholder Representative has full power and authority, place on behalf of each Sky Shareholder and stead of the Equityholders in connection with the transactions contemplated by this Agreementsuch Sky Shareholder’s successors and assigns, in accordance with to: (i) interpret the terms and provisions of this Agreement, Agreement and the documents to act on behalf of be executed and delivered by the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate Shareholders in connection with the transactions contemplated by this Agreementherewith, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Merger Note, Guaranty and Security Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver and receive deliveries of all amendmentsagreements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powersamendments, certificates and other documents that the Shareholder Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Merger Note, Guaranty and Security Agreement (including executing this Agreement;
, the Merger Note, the Guaranty and the Security Agreement, (iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement, the Merger Note, the Guaranty or the Security Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) object to such deliveries, (viii) distribute the proceeds of the Merger Note and the Security Agreement (if applicable) and any earnings and proceeds thereon and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Sky Shareholders in connection with this Agreement, the Merger Note, the Guaranty and the Security Agreement.
(b) The Shareholder Representative may be removed shall have no duties or replaced only upon delivery responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of Sky Shareholder shall otherwise exist against the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soRepresentative. The Shareholder Representative shall act for not be liable to any Sky Shareholder relating to the Equityholders on all performance of the matters set forth in Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the manner extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative believes constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Sky Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to be in which the best interests Shareholder Representative is made a party by reason of the Equityholders and consistent with fact that the obligations under Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, but however, that the Shareholder Representative shall not be responsible entitled to indemnification hereunder to the Equityholders for any Damages extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Equityholders may suffer actions taken or not taken by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law Shareholder Representative constituted actual fraud or gross negligence were taken or not taken in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionbad faith. Each of the Equityholders agrees that the The Shareholder Representative shall be entitled to recover held harmless in acting upon any indemnifiable amounts hereunder notice, statement or other out-of-pocket costs and expenses reasonably incurred certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate person and in acting or refusing to act in good faith on demand any matter. The Shareholder Representative (in connection with his capacity as such) shall not be liable to Incumaker or the Surviving Corporation by reason of this Agreement or the performance the Shareholder Representative’s duties hereunder or otherwise.
(c) Incumaker shall be entitled to rely upon any actions taken by the Shareholder Representative pursuant to as the terms hereof (including the hiring duly authorized action of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the on behalf of each Sky Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of with respect to any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under matters set forth in this Agreement or the Escrow Agreement, other than such liabilitiesthe Merger Note, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of Guaranty and the law or gross negligence in the performance of its duties under this Security Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 2 contracts
Sources: Merger Agreement (RDE, Inc.), Merger Agreement (uBid Holdings, Inc./New)
Shareholder Representative. (a) Each The Shareholder Representative will act as the agent of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders Sellers in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreementwith, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to by, this Agreement that and the Shareholder Representative deems necessary or appropriateother documents contemplated hereby, whether prior to, at or after and in connection with the Closing;
(iv) activities to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed be performed on behalf of the Equityholders that Sellers under this Agreement, and will have the full power and authority to settle and resolve any disputes which may arise hereunder and to agree to or modify the methodology or timeframe by which such disputes are to be resolved. Each of the Sellers hereby authorizes the Shareholder Representative deems necessary to take any action on the Sellers’ behalf in connection with the Sellers’ performance or appropriate in its sole discretion enforcement of this Agreement, including (i) negotiating, settling or compromising any adjustment to the Purchase Price, including under Section 2.3, (ii) performing all covenants to be performed by the Sellers hereunder, (iii) negotiating, asserting, prosecuting, settling or compromising on behalf of the Sellers any claim for indemnification against MFRM or the Buyer, (iv) negotiating, defending, settling or compromising on behalf of the Sellers any claims against any Seller arising under this Agreement or (v) entering into the Escrow Agreement and negotiating, asserting, prosecuting, defending, settling or compromising on behalf of the Sellers any disputes or claims that may arise under the Escrow Agreement. MFRM and the Buyer shall be entitled to rely exclusively upon the communications of the Shareholder Representative relating to the subject matter foregoing matters and such communications shall be deemed to be made on behalf of this Agreement as fully any or all Sellers and completely as neither MFRM nor the Equityholders could do if personally present; and
(vi) Buyer shall be required to receive service of process in connection comply with any claims under this Agreementinstructions or communications from a Seller even if such instructions or communications are contrary to the instructions or communications of the Shareholder Representative.
(b) The Neither MFRM nor the Buyer (a) need be concerned with the authority of the Shareholder Representative may to act on behalf of all Sellers as provided hereunder, or (b) shall be removed held liable or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and accountable in any other Person may conclusively and absolutely rely, without inquiry, upon manner for any action, decision, consent act or instruction omission of the Shareholder Representative in all matters referred such capacity.
(c) The Sellers agree to, jointly and severally, indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any losses or damages incurred by the Shareholder Representative (including reasonable fees and expenses of any legal counsel retained by the Shareholder Representative) arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder. The Shareholder Representative shall not have any liability to hereinany Seller or other Person arising out of or relating to the Shareholder Representative’s actions under this Agreement, the Escrow Agreement or any other certificate, exhibit, annex, schedule or other document or agreement delivered or entered into in connection with this Agreement, or with respect to any other matter in this Agreement, the Escrow Agreement or any other certificate, exhibit, annex, schedule or other document or agreement delivered or entered into in connection with this Agreement, including any of his negligent acts or omissions.
(d) Unless a Seller or other Person entitled to receive payments from or at the direction of the Shareholder Representative hereunder has provided in writing wire transfer instructions to the Shareholder Representative, the Shareholder Representative shall pay any amounts due to such Person from the Shareholder Representative by check payable to the order of such Person and mailed to such Person’s last known address. The Shareholder Representative may act rely on the wire transfer instructions or notice address provided by each Seller in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power writing until such time as such Seller provides written notice of attorney new wire transfer instructions or other writing delivered notice address to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to (which shall be in effective only upon the best interests of receipt thereof by the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative). The Shareholder Representative shall not be responsible to the Equityholders or otherwise liable for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law misdirected payments (or gross negligence in the performance of its duties to see that any Person receives any such payment) under this Agreement because such Person’s wire transfer instructions or notice address is incorrect, illegible or outdated.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall serve as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled until he resigns or is otherwise unable or unwilling to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fundserve. In the event that a Shareholder Representative resigns from such recovery position or is precluded otherwise unable or unattainable for over thirty days after demand thereof from unwilling to serve, the Sellers shall select, by the vote or consent of Sellers whose aggregate Allocation Percentages immediately prior to the Closing exceed 50%, a successor representative to fill such vacancy, shall provide prompt written notice to the Buyer of such change and such substituted representative shall then be deemed to be the Shareholder Representative Expense Fund, each for all purposes of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mattress Firm Holding Corp.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall The Shareholders have irrevocably made, constituted and appointed (the Shareholder Representative as their agent and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive true and lawful agent and attorney-in-fact (the “Shareholder Representative”)fact, of the Equityholders receiving consideration hereunder to act for such person and in the such person's name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver to the Buyer on behalf of all amendmentsthe Shareholders this Escrow Agreement, waivers, ancillary agreements, stock powers, certificates and documents that to take all other actions on behalf of all such Shareholders which the Shareholder Representative deems necessary or appropriate in his discretion in connection with the consummation this Escrow Agreement as effectively as such person could act for himself, herself or itself, (ii) to receive all claim notices and all of the transactions contemplated by notices and communications directed to such person under this Escrow Agreement and to take any action (or to determine to take no action) with respect thereto as the Shareholder Representative may deem appropriate in his discretion as effectively as such person could act for himself, herself or itself, including, without limitation, the settlement or compromise of any dispute relating to the Escrow Agreement or the Escrow Fund, or any other dispute or controversy relating to this Escrow Agreement;
, and (iii) to execute and deliver all amendments instruments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment documents of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating every kind incident to the subject matter of this Agreement foregoing to all intents and purposes and with the same effect as fully and completely as the Equityholders such person could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuinepersonally, and may assume that such person each Shareholder has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on ratified and confirms as his, her or its own act, all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall do or cause to be entitled done pursuant to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the provisions hereof. Each Shareholder has further agreed to indemnify the Shareholder Representative on demand in connection with actions taken by and to hold the Shareholder Representative pursuant to harmless against any loss, liability, cost or expense suffered or incurred without negligent conduct or bad faith on the terms hereof (including the hiring part of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken in connection with his duties as Shareholder Representative, including the costs and expenses incurred by the such Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment in defending against any claim of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence liability in the performance of its duties under this Agreementconnection herewith. The Shareholder Representative may consult with legal counsel is specifically authorized to reimburse himself for any and all such loss, liability, cost or expense suffered or incurred without negligent conduct or bad faith on the part of its selection in the event Shareholder Representative out of any dispute or question as to the meaning or construction of any portion of the provisions hereof or its duties hereunder, Escrow Fund that becomes actually and it shall incur no liability finally payable and distributable to the Equityholders in acting Shareholders in accordance with the opinion and instructions provisions of Section 6(a), 6(b) or 6(c) before such counselfunds are disbursed or distributed to any of the Shareholders.
Appears in 1 contract
Sources: Acquisition Agreement (Quanex Corp)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Acquisition and this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Group, LLC and each of the Shareholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint ▇▇▇▇ ▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementShareholders to give and receive notices and communications, to do authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or refrain from doing all by any such further acts Shareholder against any Indemnified Party or any dispute between any Indemnified Party and thingsany such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Purchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of outstanding shares the Escrow Period, the resolution of Company Common Stock as all Unresolved Claims and the satisfaction of immediately all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Effective TimeShareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. ParentA decision, act, consent or instruction of the Surviving Corporation Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and any other Person Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Scheme Shareholders; and the Escrow Agent and Purchaser may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon Escrow Agent and Purchaser are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder ApprovalEscrow Participants and without any further action of any of the Escrow Participants or the Company, Fortis Advisors LLC, a Delaware limited liability company, is hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive Shareholder Representative and as the true and lawful agent and attorney-in-fact and exclusive agent under this Agreement and the Escrow Agreement. The rights of the Escrow Participants to receive disbursements from the Escrow Fund and Holdback Account shall be subject to the right of Fortis Advisors LLC (the “"Shareholder Representative”), of ") to take any and all actions and make any and all decisions required or permitted to be taken or made by the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by Shareholder Representative under this Agreement, in accordance with the terms and provisions of this Escrow Agreement or the Shareholder Representative Engagement Agreement, including the exercise of the right to: (i) give and receive notices and communications under Section 2.6, Article 8 or the Escrow Agreement; (ii) authorize delivery to Parent of cash from the Escrow Fund pursuant to Section 2.6(f)(ii) or in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to, agree to, negotiate, bring matters before the Neutral Accounting Arbitrator, or enter into settlements and compromises with respect to, any adjustment to the Merger Consideration pursuant to Section 2.6; (iv) object to claims for indemnification made by Parent under Article 8; (v) agree to, negotiate, enter into settlements and compromises of and comply with court orders with respect to claims for indemnification made by Parent under Article 8; (vi) undertake any defense of Third‑Party Claims; and (vii) take all actions necessary or appropriate in the good faith judgment of the Shareholder Representative for the accomplishment of the foregoing. Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to act on behalf of the Equityholders Escrow Participants, except as expressly provided herein, in any Proceeding involving this Agreement, to do or refrain from doing all such further acts the Escrow Agreement and things, and to execute all such documents as in the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Engagement Agreement, including the power:
(i) to act and for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreementpurposes of clarity, including the power to compromise any indemnity claim on behalf there are no obligations of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary in any ancillary agreement, schedule, exhibit or appropriate in connection with the consummation Disclosure Schedule. The identity of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed changed, and a successor Shareholder Representative may be appointed, from time to time (including in the event of the resignation or replaced only upon delivery the death, disability or other incapacity of written notice the Shareholder Representative) by Escrow Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and any such successor shall succeed the Shareholder Representative as Shareholder Representative hereunder. The immunities and rights to indemnification shall survive the Surviving Corporation by resignation or removal of the Company Shareholders holding at least a majority Shareholder Representative or any member of outstanding shares the Advisory Group and the Closing and/or any termination of Company Common Stock as this Agreement and the Escrow Agreement. No bond shall be required of immediately prior to the Shareholder Representative. From and after the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely relya decision, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative taken under this Agreement, the Escrow Agreement or the Shareholder Representative Engagement Agreement shall be final, binding and conclusive upon each Escrow Participant and such Escrow Participant's successors as if expressly confirmed and ratified in writing by such Escrow Participant, and all matters referred defenses which may be available to hereinany Escrow Participant to contest, negate or disaffirm the action of the Shareholder Representative taken in good faith under this Agreement, the Escrow Agreement or the Shareholder Representative Engagement Agreement are waived.
(b) At the Closing, Parent shall make a cash payment to the Shareholder Representative, by wire transfer of immediately available funds to an account designated by the Shareholder Representative prior to the Closing Date, in an amount equal to the Representative Reimbursement Amount. The Representative Reimbursement Amount shall be held by the Shareholder Representative for (i) reimbursement payable to the Shareholder Representative under this Section 9.1 or (ii) use as otherwise determined by the Advisory Group. The Shareholder Representative may act in reliance upon is not providing any instructioninvestment supervision, notice, certification, demand, consent, authorization, receipt, power recommendations or advice and shall have no responsibility or liability for any loss of attorney or other writing delivered to it by any other person principal of the Representative Reimbursement Amount other than itself without being required to determine the authenticity as a result of its gross negligence or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or orderwillful misconduct. The Shareholder Representative may act is not acting as a withholding agent or in reliance upon any signature believed by it to be genuinesimilar capacity in connection with the Representative Reimbursement Amount, and may assume that such person has been properly authorized to do sono tax reporting or income distribution obligations. The Shareholder Escrow Participants will not receive any interest on the Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner Reimbursement Amount and assign to the Shareholder Representative believes any such interest. Subject to be in Advisory Group approval, the best interests Shareholder Representative may contribute funds to the Representative Reimbursement Amount from any consideration otherwise distributable to the Escrow Participants. Any portion of the Equityholders and consistent Representative Reimbursement Amount that has not been utilized by the Shareholder Representative pursuant to the terms of this Agreement on or prior to the date specified by the Shareholder Representative on or after the Escrow Release Date, shall be paid by the Shareholder Representative to the Escrow Agent for distribution to the Escrow Participants pro rata in accordance with their respective Escrow Participation Percentages.
(c) Certain Escrow Participants have entered into an engagement agreement (the "Shareholder Representative Engagement Agreement") with the obligations Shareholder Representative to provide direction to the Shareholder Representative in connection with its services under this Agreement, but the Escrow Agreement and the Shareholder Representative Engagement Agreement (such Escrow Participants, including their individual representatives, collectively hereinafter referred to as the "Advisory Group"). Neither the Shareholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the "Shareholder Representative Group"), shall not be responsible to the Equityholders liable for any Damages the Equityholders may suffer liability, loss, damage, penalty, fine, cost or expense incurred without gross negligence by the performance Shareholder Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties under this Agreementor the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Escrow Participants shall indemnify, defend and hold harmless the Shareholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other than Damage arising skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred without gross negligence or willful violation misconduct on the part of the law Shareholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Shareholder Representative Engagement Agreement. The Escrow Fund shall be available to indemnify and hold the Shareholder Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholder Representative without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the performance acceptance or administration of its duties under this Agreement as determined and the Escrow Agreement. The powers, immunities and rights to indemnification granted to the Shareholder Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Escrow Participant and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each any Escrow Participant of the Equityholders agrees that whole or any fraction of his, her or its interest in the Escrow Fund and Holdback Account.
(d) The Shareholder Representative shall be entitled to deduct and recover from any indemnifiable amounts hereunder payable to the Escrow Participants pursuant to this Agreement or other out-of-pocket the Escrow Agreement any costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof of this Agreement or the Escrow Agreement (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from ), after the Representative Reimbursement Amount has been exhausted. The Escrow Participants acknowledge that the Shareholder Representative Expense Fundshall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from Furthermore, the Shareholder Representative Expense Fundshall not be required to take any action unless the Shareholder Representative has been provided with funds, each of security or indemnities which, in its determination, are sufficient to protect the Equityholders severally shall indemnify Shareholder Representative against the costs, expenses and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or liabilities which may be incurred by the Shareholder Representative arising out in performing such actions.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall promptly afford to the Shareholder Representative reasonable access to the books, records (including accountants' work papers) and employees of or resulting from any action taken or omitted Parent and the Surviving Corporation to be taken the extent reasonably determined by the Shareholder Representative to be necessary to permit it to investigate or determine any matter relating to (i) its rights or obligations or the rights or obligations of the Escrow Participants under this Agreement Agreement, or (ii) the rights or obligations (under any law or otherwise) of the Escrow Participants with respect to any period ending on or before the date of this Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined . Unless otherwise consented to in writing by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation , neither Parent nor the Surviving Corporation shall, for a period of four years after the law or gross negligence in the performance date of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute , destroy, alter or question as to the meaning or construction otherwise dispose of any of the provisions hereof books and records of the Surviving Corporation relating in whole or its duties hereunderin part to any period prior to the date of this Agreement without first offering to surrender to the Shareholder Representative such books and records or any portion thereof which Parent or the Surviving Corporation may intend to destroy, alter or otherwise dispose of.
(f) Parent may rely and shall be protected in acting, or refraining from acting, upon any written notice, instruction or request furnished to it hereunder or under the Escrow Agreement and reasonably believed by Parent to be genuine and to have been signed or presented by the Shareholder Representative as if such written notice, instruction or request had been furnished to it by all the Escrow Participants.
(g) Parent hereby consents to the retention by the Shareholder Representative of L▇▇▇▇ ▇▇▇▇▇ & N▇▇▇▇▇▇▇▇▇▇▇ LLP ("L▇▇▇▇ ▇▇▇▇▇") as counsel following the Closing, notwithstanding that L▇▇▇▇ ▇▇▇▇▇ has represented the Company in connection with the transactions contemplated by this Agreement, including the negotiation of this Agreement, and waives any right Parent or the Surviving Corporation may have to object to such representation.
(h) The Shareholder Representative shall be entitled to: (i) rely upon the Schedule of Escrow Participants, (ii) rely upon any signature believed by it shall incur no liability to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Equityholders in acting in accordance with the opinion and instructions of such counselapplicable Escrow Participant or other party.
Appears in 1 contract
Sources: Merger Agreement (Aerocentury Corp)
Shareholder Representative. (a) Each By the execution and delivery of this Agreement, each of the Equityholders, by virtue of the adoption of this Agreement Selling Shareholders hereby irrevocably constitutes and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by its his execution of this Agreement as Shareholder RepresentativeAgreement, GF Private Equity Group, LLC R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts its his appointment) as the true, exclusive true and lawful agent and attorney-in-fact (the “Shareholder Representative”), ) of the Equityholders receiving consideration hereunder Selling Shareholders to act in the name, place and stead of the Equityholders Selling Shareholders in connection with the transactions contemplated by this Agreement, in accordance with the terms Agreement (other than any retention agreements between Buyer and provisions of this Agreementany Selling Shareholder), and to act on behalf of the Equityholders Selling Shareholders in any Proceeding litigation or arbitration involving this AgreementAgreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate appropriate, in connection with the transactions contemplated by this AgreementAgreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), including including, without limitation, the power:
(ia) to act for the Equityholders Selling Shareholders with regard to matters pertaining to the Post-Closing Adjustment Statement and the Post-Closing Adjustment;
(b) to act for the Selling Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Selling Shareholders and to transact matters of litigation or other Proceedingslitigation;
(iic) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiid) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(ive) to receive funds for the payment of expenses of the Equityholders Selling Shareholders and apply such funds in payment for such expenses;
(vf) to do or refrain from doing any further act or deed on behalf of the Equityholders Selling Shareholders that the Shareholder Representative deems necessary or appropriate in its her sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders Selling Shareholders could do if personally present; and
(vig) to receive notices and service of process in connection with any claims under this Agreement.
(bh) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentBuyer, Merger Sub, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction action of the Shareholder Representative in all matters referred to herein. The Selling Shareholders hereby confirm all that the Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power shall do or cause to be done by virtue of attorney or other writing delivered to it by any other person other than itself without being required to determine her appointment as the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity Shareholder Representative of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soSelling Shareholders. The Shareholder Representative shall act for the Equityholders Selling Shareholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests interest of the Equityholders Selling Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Selling Shareholders for any Damages loss or damages the Equityholders Selling Shareholders may suffer by the performance of its her duties under this Agreement, other than Damage loss or damage arising from willful violation of the law or gross negligence in the performance of its her duties under this Agreement.
(i) Upon the Closing, the Company shall wire $500,000 (the “Expense Fund”) to an account designated by the Shareholder Representative, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative for, any third party expenses pursuant to this Agreement as determined by a non-appealable order and the other Transaction Documents or judgment for satisfying certain Claims pursuant to Section 8.4(f). The Selling Shareholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of a court or tribunal of competent jurisdiction. Each principal of the Equityholders agrees Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholder Representative will hold these funds separate from its unrelated funds, will not use these funds for any unrelated purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Shareholder Representative’s responsibilities, the Shareholder Representative will deliver any remaining balance of the Expense Fund to the Selling Shareholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Selling Shareholders at the time of Closing.
(j) The initial Shareholder Representative shall appoint his or her successor Shareholder Representative, or if the initial Shareholder Representative dies or becomes disabled (such that he or she cannot perform his or her duties as Shareholder Representative or to appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be entitled Cohiba Retained Assets, LLC. If any successor Shareholder Representative dies or becomes disabled (such that he or she could - 68 - not perform his or her duties as Shareholder Representative or to recover any indemnifiable amounts hereunder appoint a successor Shareholder Representative) or other out-of-pocket costs and expenses reasonably incurred is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be elected by a vote of a majority of the shares of Capital Stock then held by the Shareholder Representative on demand in connection with actions taken Selling Shareholders (or by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment estate of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counseldeceased Selling Shareholder).
Appears in 1 contract
Shareholder Representative. Each Shareholder hereby irrevocably authorizes and appoints ▇▇▇▇▇ ▇▇▇▇▇ (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as "Shareholder Representative"), GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive such Shareholder's representative and true and lawful agent and attorney-in-fact and agent to (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to a) act in the such Shareholder's name, place and stead as contemplated by Sections 7.6 and 8.1 and Articles VI and IX, (b) execute in the name and on behalf of such Shareholder any other agreement, certificate, instrument or document to be delivered by the Equityholders Shareholders in connection with the transactions contemplated by this Agreement, (c) authorize the release of delivery to the Parent of the Escrow Fund in accordance with amounts in satisfaction of Claims by the terms and provisions of this AgreementParent Indemnified Parties pursuant to Article IX (including by not objecting to such Claims), and (d) agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand litigation of, and comply with orders of court with respect to Claims. If the Shareholder Representative or any successor shall resign, die, or become unable to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative, a replacement shall promptly be appointed by a writing signed by Shareholders who initially received a majority of the Aggregate Stock Consideration. Any such successor Shareholder Representative shall deem necessary have the same powers and duties as if appointed as the original Shareholder Representative hereunder. The Shareholder Representative or appropriate the Shareholders shall promptly notify the Parent of the appointment of a successor Shareholder Representative. The Shareholders (other than the Shareholder Representative) shall, jointly and severally, indemnify the Shareholder Representative for, and hold him harmless against, any loss, liability, claim or expense, including reasonable attorney's fees, arising out of or in connection with the transactions contemplated by his duties as Shareholder Representative under this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand of defending himself against any such loss, liability, claim or expense in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselherewith.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corillian Corp)
Shareholder Representative. (ai) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder Requisite Stockholder Approval, hereby appoints GF Private Equity Groupeach of the Stockholders shall be deemed to have agreed to appoint J▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC and shall have irrevocably constituted and appointed (and by as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), ” for and on behalf of the Equityholders Stockholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving consideration hereunder notices and communications, to act authorize payment to any Buyer Indemnified Party from the Escrow Fund in satisfaction of claims by any Buyer Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Buyer Indemnified Party against any Stockholder or In the nameMoney Optionholder or by any such Stockholder or In the Money Optionholder against any Buyer Indemnified Party or any dispute between any Buyer Indemnified Party and any such Stockholder or In the Money Optionholder, place and stead of the Equityholders in connection with each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Buyer Indemnified Parties; provided, however, that the Shareholder Representative may not be removed unless holders of seventy-five percent (75%) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in accordance with the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Stockholders and In the Money Optionholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement, Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(ii) The Shareholder Representative shall not be liable for any act on behalf done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders and In the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as Money Optionholders shall indemnify the Shareholder Representative shall deem necessary and hold the Shareholder Representative harmless against any loss, liability or appropriate expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the transactions contemplated acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf shall constitute a decision of the Company Shareholders Stockholders and to transact matters of litigation or other Proceedings;
(ii) to execute In the Money Optionholders and deliver all amendmentsshall be final, waivers, ancillary agreements, stock powers, certificates binding and documents that conclusive upon the Shareholder Representative deems necessary or appropriate in connection with Stockholders and In the consummation of Money Optionholders; and the transactions contemplated by this Agreement;
(iii) to execute Escrow Agent and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative Buyer may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Stockholders and In the Money Optionholders. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power all questions arising under this Agreement seek advice of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuinelegal counsel, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth anything done, omitted or suffered in this Agreement in the manner good faith by the Shareholder Representative believes to be in the best interests of the Equityholders and consistent accordance with the obligations under this Agreementsuch advice, but the Shareholder Representative shall not be responsible liable to any Stockholder or In the Equityholders Money Optionholder. The Escrow Agent and Buyer Indemnified Parties are hereby relieved from any liability to any person for any Damages the Equityholders may suffer by the performance decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Stericycle Inc)
Shareholder Representative. (a) Each By approving the Merger at a special meeting of shareholders or by written consent of the Equityholdersshareholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company each Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted authorized and appointed the chief executive officer of the Surviving Corporation or if there is no chief executive officer the next highest ranking officer (and by its execution of this Agreement as "Shareholder Representative"), GF Private Equity Groupwith full power of substitution and resubstitution, LLC hereby accepts its appointment) as the true, exclusive such Shareholder's representative and true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder and agent to act in the such Shareholder's name, place and stead as contemplated by Article 9 and to execute in the name and on behalf of such Shareholder the Equityholders Interwest Escrow Agreement and any other agreement, certificate, instrument or document to be delivered by such Shareholder in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Interwest Escrow Agreement.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder or under the Interwest Escrow Agreement as the Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Interwest Escrow Shares were contributed to the Surviving Corporation Interwest Escrow shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder and under the Interwest Escrow Agreement, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentShareholder Representative.
(c) A decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in all matters referred to shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Interwest Escrow Agent and the Indemnified Parties (as defined herein. The Shareholder Representative ) may act in reliance rely upon any instructionsuch decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of the Equityholders Shareholders. The Interwest Escrow Agent and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible Indemnified Parties are hereby relieved from any liability to the Equityholders any person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Innerspace Corp)
Shareholder Representative. (a) Each For purposes of this Agreement, the Shareholders hereby designate ▇▇▇▇▇ to serve as the sole and exclusive representative of the Equityholders, by virtue of Shareholders (the adoption “Shareholder Representative”) with respect to those provisions of this Agreement and thereby the Merger that contemplate action by the Company Shareholder ApprovalRepresentative and with respect to the Escrow Agreement; provided, hereby appoints GF Private Equity Grouphowever, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement that if ▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, GF Private Equity Groupthen ▇▇▇▇▇ shall serve as successor Shareholder Representative. Each successor Shareholder Representative, LLC if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein shall be deemed to include any successor Shareholder Representative.
(b) The Shareholder Representative is hereby accepts its appointment) constituted and appointed as the true, exclusive and lawful agent and attorney-in-fact (for and on behalf of the “other Shareholders with respect to the performance of his or her duties as the Shareholder Representative”). This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of Law, whether by such Shareholder’s death, disability, protective supervision or any other event. The Shareholder Representative shall promptly deliver to each Shareholder any notice received by the Shareholder Representative concerning this Agreement. Without limiting the generality of the Equityholders receiving consideration hereunder to act in foregoing, the nameShareholder Representative has full power and authority, place on behalf of each Shareholder and stead of the Equityholders in connection with the transactions contemplated by this Agreementsuch Shareholder’s successors and assigns, in accordance with to: (i) interpret the terms and provisions of this Agreement, Agreement and the documents to act on behalf of be executed and delivered by the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate Shareholders in connection with the transactions contemplated by this Agreementherewith, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver and receive deliveries of all amendmentsagreements, certificates, statements, notices, approvals, extensions, waivers, ancillary agreementsundertakings, stock powersamendments, certificates and other documents that the Shareholder Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;
, (iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement or the Escrow Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (vi) authorize delivery to Buyer of the Escrow Amount or any portion thereof in satisfaction of payment to Buyer of the Net Adjustment Amount or portion thereof, (vii) object to such deliveries, (viii) distribute the Escrow Amount and any earnings and proceeds thereon, and (ix) take all actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Shareholders in connection with this Agreement and the Escrow Agreement.
(bc) Service by the Shareholder Representative shall be without compensation except for the reimbursement by the Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(d) The Shareholder Representative may be removed shall have no duties or replaced only upon delivery responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of Shareholder shall otherwise exist against the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soRepresentative. The Shareholder Representative shall act for not be liable to any Shareholder relating to the Equityholders on all performance of the Shareholder Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be indemnified and held harmless by the Shareholders against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholder Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholder Representative shall be protected in acting upon any notice, statement or certificate believed by the Shareholder Representative to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith on any matter.
(e) Buyer shall be entitled to rely upon any actions taken by the Shareholder Representative as the duly authorized action of the Shareholder Representative on behalf of each Shareholder with respect to any matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (DSW Inc.)
Shareholder Representative. (a) Each The Shareholder Representative shall have the exclusive authority to give and receive notices and communications pursuant to the terms of this Article 6 solely with respect to indemnification claims by the Terra Tech Indemnified Parties to be satisfied solely by the delivery of Holdback Shares to the Terra Tech Indemnified Parties, to authorize delivery to the Terra Tech Indemnified Parties of the EquityholdersHoldback Shares in satisfaction of indemnification claims by the Terra Tech Indemnified Parties as contemplated by Section 6.3, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and take legal actions and comply with orders of courts and awards of arbitrators with respect to indemnification claims by virtue the Terra Tech Indemnified Parties that will or may be paid or otherwise satisfied solely by the delivery of Holdback Shares, and to take all actions necessary or appropriate in the judgment of the adoption Shareholder Representative for the accomplishment of this Agreement and thereby the Merger by foregoing. No bond shall be required of the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary receive no compensation for services rendered. Notices or appropriate in connection with communications to or from the transactions contemplated by this Agreement, including the power:
(i) Shareholder Representative shall constitute notice to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf or from each of the Company Shareholders and solely with respect to transact matters indemnification claims by the Terra Tech Indemnified Parties to be satisfied solely by the delivery of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating Holdback Shares to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementapplicable Terra Tech Indemnified Parties.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery of written notice omitted hereunder in her capacity as Shareholder Representative, except to the Surviving Corporation extent she has acted with willful misconduct, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that she did not act with gross negligence or willful misconduct. The other Shareholders shall severally and not jointly indemnify the Shareholder Representative and hold her harmless against any loss, liability or expense incurred in good faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholder Representative ("Outstanding Shareholder Representative Expenses"). If not paid directly to the Shareholder Representative by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior Shareholders, such losses, liabilities or expenses may be recovered by the Shareholder Representative from the Escrow Shares (if any) that otherwise would be distributed to the Effective Time. ParentCompany Shareholders hereunder, and such recovery (if any) of Outstanding Shareholder Representative Expenses from such Escrow Shares will be made from the Surviving Corporation and any other Person may conclusively and absolutely relyCompany Shareholders according to their respective Pro Rata Shares.
(c) A decision, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in shall constitute a decision of all matters referred to herein. The Shareholder Representative the Company Shareholders and shall be final, binding and conclusive upon each of the Company Shareholders, and the Escrow Agent and Terra Tech may act in reliance rely upon any instructiondecision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of each of the Equityholders and consistent with Company Shareholders.
(d) Notwithstanding the obligations under this Agreementforegoing, but the Shareholder Representative will not take any action required or authorized under this Agreement without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ acting on behalf of the Management Group (the "Management Group Representative"), which consent shall not be responsible unreasonably withheld, delayed, denied, or conditioned. The Management Group Representative may be replaced at any time by the affirmative written consent of holders of a majority of the Shares held by the Management Group (measured as of immediately prior to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense FundClosing). In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of and the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs Management Group Representative are unable to agree on an action required or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted permitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreementhereunder, other than such liabilities, losses, damages, claims, costs or expenses determined matter will be decided by a non-appealabe order or judgment written consent of holders of a court majority of the Shares held by all Company Shareholders (measured as of immediately prior to Closing), or tribunal their respective heirs and assigns, and such decision shall be binding on all Company Shareholders. In the event of competent jurisdiction a deadlock after all Company Shareholders vote, the matter under consideration will be decided pursuant to the disputes resolution procedure set forth in Section 6.7(e) immediately below.
(e) The exclusive method for resolving any and all disputes, claims or controversies arising out of or resulting from relating to this Section 6.7, shall be final and binding arbitration before JAMS, or its successors. Either the Shareholder Representative’s willful violation Representative of the law Management Group Representative may commence the arbitration process called for in this Section 6.7 by filing a written demand for arbitration with JAMS, with a copy to all of the Company Shareholders. Notwithstanding the amount or gross negligence issue in dispute, the performance arbitration will administered in accordance with the Streamlined Arbitration Rules and Procedures (the "Rules") in effect at the time of its duties under this Agreementfiling of the demand for arbitration, and conducted at a location determined by the arbitrator within Alameda County, California. The Shareholder Representative arbitrator shall be a retired judge with significant experience resolving commercial disputes. The arbitrator's fees in connection with any such arbitration proceeding shall initially be shared equally among the Company Shareholders, subject to any reallocation in accordance with the arbitrator's decision. The arbitrator will also have the authority to award reimbursement of reasonable attorney's fees to the prevailing party to be shared by one or both of the other parties as determined by the arbitrator. In light of the parties' desire to proceed informally, expeditiously and at minimal expense, the parties agree to waive all discovery and any oral hearing and to submit all disputes to the arbitrator based solely upon written submissions. The arbitrator shall apply the substantive and procedural laws of the State of California, without regard to the conflicts of law principles of such state. The arbitrator's decision and award shall be rendered in writing with counterpart copies to all parties. Judgment upon an arbitration may consult with legal counsel of its selection be entered in any court having competent jurisdiction thereof, and shall be binding, final and non-appealable. In the event of any dispute or question as conflict between this Section 6.7(e) and the Rules, this Section 6.7(e) shall govern and control. For the avoidance of doubt, the arbitration procedure in this Section 6.7(e) shall only apply to the meaning or construction of any of the provisions hereof or its duties hereunderdisputes among Company Shareholders with respect to this Section 6.7, and it shall incur no liability to the Equityholders any other disputes under this Agreement may be resolved in acting any court of competent jurisdiction in accordance with the opinion and instructions of such counsel.Section 11.6
Appears in 1 contract
Sources: Merger Agreement (Terra Tech Corp.)
Shareholder Representative. (a) Each of the EquityholdersThe Selling Parties, by virtue of the adoption their execution and delivery of this Agreement or, with respect to Selling Parties that are not signatories to this Agreement, by virtue of approval of this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders in accordance with the requirements of Delaware Law and by their acceptance of any Merger Consideration due to them, hereby appoints GF Private Equity Group, LLC and shall will be deemed to have irrevocably constituted and appointed (and by its execution appointed, effective as of the date of this Agreement as Agreement, IBF (together with its permitted successors, the "Shareholder Representative"), GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive their true and lawful agent and attorney-in-fact (fact, and the “Shareholder Representative”), by its execution of the Equityholders receiving consideration hereunder this Agreement shall be deemed to act in the namehave accepted such appointment, place and stead of the Equityholders to enter into any agreement in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Deposit Escrow Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Interim Escrow Agreement or the Escrow Agreement, to do exercise all or refrain from doing all any of the powers, authority and discretion conferred on it under any such further acts and thingsagreement, and to execute all such documents act as the Shareholder Representative shall deem necessary or appropriate proxy for each Selling Party in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, including to waive or modify any terms and conditions of any such agreement (other than payment of the power:
Merger Consideration due at Closing), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of and claim, action or proceeding for which any Shareholder, Purchaser, or the Merger Sub may be entitled to indemnification and the Shareholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Shareholder Representative shall not be liable for any action taken or not taken by him in his capacity as Shareholder Representative either (i) to act for with the Equityholders with regard to matters pertaining to indemnification referred to in consent of stockholders who, as of the date of this Agreement, including the power to compromise any indemnity claim on behalf own a majority in number of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock voting stock (considered on an as converted basis), or (ii) in the absence of its own willful misconduct. If the Shareholder Representative shall be unable or unwilling to serve in such capacity, its successor shall be named by those persons holding a majority of the shares of Company voting stock outstanding immediately prior to the Effective Time. Parent, Time who shall serve and exercise the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction powers of the Shareholder Representative in all matters referred hereunder. Solely with respect to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from in its capacity as such, the Shareholder Representative Expense Fund. In shall have no liability to Purchaser, the event such recovery is precluded Company or unattainable any of their respective affiliates except for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs claims based upon fraud or expenses suffered or incurred bad faith actions by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as “Shareholder Representative” under this Agreement, GF Private Equity Group, LLC hereby accepts its appointment) and as the true, exclusive such shall serve as agent for and lawful agent and have all powers as attorney-in-fact (of each Holder, for and on behalf of each Holder, to take the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders following actions in connection with the transactions contemplated negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation consents or other Proceedings;
(ii) documents to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation effect any of the transactions contemplated by this Agreement;
(iii) Agreement or the Ancillary Agreements; and to execute and deliver take all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems actions necessary or appropriate in its sole discretion relating to the subject matter judgment of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process Shareholder Representative in connection with any claims under this Agreementthe foregoing.
(b) The Section 10.8.2 If the Shareholder Representative may be removed elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or replaced only upon delivery of her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Surviving Corporation by Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentHolders.
Section 10.8.4 A decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all matters referred of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to herein. The rely upon any decision, act, consent or instruction of the Shareholder Representative may act in reliance upon any instructionas being the decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity each and all of the service thereofHolders, or the jurisdiction of the court issuing and Buyer shall be relieved from any judgment or order. The Shareholder Representative may act in reliance upon liability to any signature believed Person for any acts done by it to be genuinein accordance with such decision, and may assume that such person has been properly authorized to do soact, consent or instruction. The Shareholder Representative shall act for have reasonable access to information about the Equityholders on all Surviving Corporation and Buyer and the reasonable assistance of the matters set forth in Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Agreement in the manner Article 10, provided that the Shareholder Representative believes shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to be anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the best interests event of any decision, act, consent or instruction of the Equityholders and consistent with the obligations under Shareholder Representative pursuant to this Agreement, but the Section 10.8. The Shareholder Representative shall not be responsible to the Equityholders liable for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law act done or gross negligence in the performance of its duties under this Agreement omitted hereunder as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover while acting in good faith, and any indemnifiable amounts hereunder act done or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative omitted pursuant to the terms hereof (including the hiring advice of legal counsel or advisors shall be conclusive evidence of such good faith. Each Holder, jointly and the incurring severally, with right of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fundcontribution among them, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising out of or resulting from any action taken decision, act, consent or omitted instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be taken by required of the Shareholder Representative, and the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question shall receive no compensation for services as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselsuch.
Appears in 1 contract
Sources: Merger Agreement (Cnet Networks Inc)
Shareholder Representative. (a) Each Effective as of the Equityholdersdate hereof, by virtue and without further act of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approvalany Selling Shareholder, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (or its successor appointed pursuant to this Section 7.7, the “"Shareholder Representative”)") for each Selling Shareholder, for and on behalf of such Selling Shareholder: (i) to give and receive notices and communications; notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Equityholders receiving consideration hereunder Selling Shareholders; (ii) to act in seek indemnification from the name, place and stead of Purchaser pursuant to the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, to defend indemnification claims by Purchaser, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to act on behalf of the Equityholders in indemnification or any Proceeding involving other claims relating to this Agreement, ; and (iii) to do or refrain from doing take all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf judgment of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with for the consummation accomplishment of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementforegoing.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentA decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative shall constitute a decision of all the Selling Shareholders and shall be final, binding and conclusive upon each of such Selling Shareholders only with regard to the Shareholder Representative's performance of his powers granted under 7.7(a), and the Purchaser and the Company may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of every such Selling Shareholder. Each of Purchaser and the Company is hereby relieved from any liability to any person for any acts done by it in all matters referred to herein. accordance with such decision, act, consent or instruction of the Shareholder Representative.
(c) The Shareholder Representative may act be removed by the Selling Shareholders representing a majority in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity interest of the service thereof, or Selling Shareholders (based on the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters proportions set forth in this Agreement in Exhibit A) (the manner "Required Sellers") upon not less than ten (10) calendar days' prior written notice to the other parties hereto, which notice shall be accompanied with an instrument executed by a substitute agent, which must be a Selling Shareholder, accepting the position of a Shareholder Representative. In the event of a dissolution of the Shareholder Representative believes or any other vacancy in its position, the Required Sellers may appoint a substitute agent upon not less than ten (10) calendar days' prior written notice to the other parties hereto, which notice shall be in accompanied with an instrument executed by a substitute agent, which must be a Selling Shareholder, accepting the best interests position of a Shareholder Representative. After the end of such prior notice period, the successor Shareholder Representative shall, without further acts, be vested with all the rights, powers, and duties of the Equityholders and consistent with the obligations under this Agreement, but the predecessor Shareholder Representative shall not be responsible to as if originally named as Shareholder Representative. If the Equityholders for any Damages the Equityholders may suffer by the performance position of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant vacant for more than thirty (30) calendar days, Purchaser may file a petition to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence set forth in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as Section 9.7 to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability appoint a successor to the Equityholders in acting in accordance with the opinion and instructions of such counselposition.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersThe Designated Company Stockholders, by virtue of the adoption approval of this Agreement and thereby the Merger by the Company Shareholder ApprovalMerger, hereby appoints GF Private Equity Group, LLC and shall will be deemed to have irrevocably constituted and appointed appointed, effective as of the date hereof, Andreas Typaldos (and by its execution of this Agreement as Shareholder Representativetogether with his permitted successors, GF Private Equity Groupthe "REPRES▇▇▇▇▇▇▇▇"), LLC hereby accepts its appointment) as the true, exclusive ▇▇ ▇heir true and lawful agent and attorney-in-fact (fact, and the “Shareholder Representative”), by his execution of the Equityholders receiving consideration hereunder this Agreement shall be deemed to act in the namehave accepted such appointment, place and stead of the Equityholders to enter into any agreement in connection with the transactions contemplated by this Agreement, the Escrow Agreements or the Shareholder Agreement to exercise all or any of the powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (other than the Merger Consideration), to give and receive notices on their behalf, and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the assertion, prosecution, defense, settlement or compromise of any claim, action or proceeding for which any Company Stockholder, Parent or the Merger Sub may be entitled to indemnification and the Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Representative shall not be liable for any action taken or not taken by him in accordance his capacity as Representative (i) with the terms and provisions consent of Designated Company Stockholders who, as of the date of this Agreement, and to act on behalf own a majority in number of the Equityholders outstanding Company Shares owned by all of the Designated Company Stockholders, in any Proceeding involving this Agreementthe aggregate, to do or refrain from doing all such further acts and things, and to execute all such documents as (ii) in the Shareholder absence of his own willful misconduct. If the Representative shall deem necessary be unable or appropriate unwilling to serve in connection with the transactions contemplated such capacity, his successor shall be named by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf those persons holding a majority of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of Shares outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer Time held by the performance Designated Company Stockholders who shall serve and exercise the powers of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionRepresentative hereunder. Each of the Equityholders agrees that the Shareholder Representative shall be entitled Solely with respect to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to in his capacity as such, the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur have no liability to the Equityholders in acting in accordance with the opinion and instructions Parent or any of such counselits affiliates except for claims based upon fraud.
Appears in 1 contract
Sources: Merger Agreement (Cdknet Com Inc)
Shareholder Representative. (a1) By approving this Merger Agreement and accepting the Merger Consideration, each of the Shareholders hereby irrevocably makes, constitutes, and appoints Ray M. Deaver as the representative, agent and true and lawful attorn▇▇ ▇▇ ▇▇▇▇ ▇▇ and for each of the Shareholders in connection with this Agreement (the "Shareholder Representative"). Each of the EquityholdersShareholders hereby authorizes and empowers the Shareholder Representative to make or give any approval, by virtue waiver, request, consent, instruction or other communication on behalf of each of the adoption Shareholders as each such Shareholder could do for himself, itself or herself, including with respect to the amendment of any provision of this Agreement. Each of the Shareholders further authorizes and empowers the Shareholder Representative to (i) receive all demands, notices or other communications directed to such Shareholder under this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed to take any action (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder or to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and determine to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all taking any action) with respect thereto as he may deem appropriate as effectively as such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to could act for himself, itself or herself (including, without limitation, the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to settlement or compromise of any indemnity claim on behalf of the Company Shareholders dispute or controversy) and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates instruments and documents that of every kind incident to the foregoing with the same effect as if such Shareholder had executed and delivered such instruments and documents personally. Accordingly, any demands, notices or other communications directed to the Shareholders hereunder shall be deemed effective if given to the Shareholder Representative deems necessary Representative. Upon the death, resignation or appropriate in connection with the consummation incapacity of the transactions contemplated Shareholder Representative, or at any other time, a successor may be appointed by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses vote of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf holders of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of the Shares outstanding shares of Company Common Stock as of immediately prior to the Effective Time, and such successor shall agree in writing to accept such appointment in accordance with the terms hereof. ParentNotice of the selection of a successor Shareholder Representative appointed in the manner permitted in this Section 14.11 shall be provided to Gray and Merger Corp. promptly.
(2) Witho▇▇ ▇imiting the generality of the foregoing paragraph (1), if Gray, Merger Corp. or any of the other Persons specified in Section 1▇.▇ asserts a claim for indemnification based upon the provisions of Section 11, the Surviving Corporation notice requirements of Sections 11.3 and 14.8 shall be satisfied by delivery of any other Person may conclusively required notice to the Shareholder Representative as representative of and absolutely relyon behalf of each of the Shareholders, without inquiryand the Shareholder Representative shall exercise all rights of the Shareholders, upon any actionas indemnifying parties under Section 11, decisionand shall cause all obligations of the Shareholders, consent or instruction as indemnifying parties under Section 11, to be performed. Each of the Shareholders agrees to be bound by all actions and failures to act of the Shareholder Representative in all matters referred to hereinaccordance with this Section 14.11. The Shareholder Representative may act in reliance upon any instructionNotwithstanding the foregoing, notice, certification, demand, consent, authorization, receipt, power it shall be the obligation of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineeach Shareholder, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all not of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of , to indemnify Gray, Merger Corp. and the law or gross negligence other Persons specified in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of Section 11.1 ba▇▇▇ upon the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.Section
Appears in 1 contract
Sources: Merger Agreement (Gray Communications Systems Inc /Ga/)
Shareholder Representative. (a) Each of Immediately prior to the EquityholdersEffective Time, by virtue of the adoption of this Agreement and thereby the Merger by the each Company Shareholder Approvaland Company Option Holder hereby irrevocably constitutes and appoints CMT SR, hereby appoints GF Private Equity GroupInc. as her, LLC and shall have irrevocably constituted and appointed (and by his or its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) Representative as the true, exclusive true and lawful agent and attorney-in-fact (the “of such Company Shareholder Representative”), and/or Company Option Holder with full powers of the Equityholders receiving consideration hereunder substitution to act in the name, place and stead of such Company Shareholder and/or Company Option Holder with respect to the Equityholders in connection with the transactions contemplated by this Agreementperformance, in accordance with and exercise of any rights and obligations, on behalf of such Company Shareholder and/or Company Option Holder under the terms and provisions of this Agreement, as the same may be from time to time amended, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents on such Company Shareholder’s and/or Company Option Holder’s behalf, as the Shareholder Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including:
(i) execute and deliver this Agreement (and any amendments hereto),
(ii) take all actions required, or agree upon or compromise any matter related to the calculation of any true-up adjustments described in Section 2.5, or pursuant to the terms hereof or other payments to be made in respect of the transactions contemplated by this Agreement, including the power:Merger,
(iiii) to do or refrain from doing any act for or deed in respect of the Equityholders exchange procedures contemplated by Section 2.4 or related thereto,
(iv) give and receive notices and communications and receive service of process on behalf of each of the Company Shareholders and Company Option Holders, (v) act on behalf of the Company Shareholders and Company Option Holders with regard respect to all indemnification matters pertaining to indemnification referred to in this Agreement, including the power right to compromise any indemnity claim on behalf of such Company Shareholder and/or Company Option Holder any indemnification claim made by or against such Company Shareholder and/or Company Option Holder involving this Agreement, (vi) act for the Company Shareholders and Company Option Holders with respect to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendmentspost-Closing matters, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds including without limitation pursuing any claim for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter alleged breach of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.,
Appears in 1 contract
Sources: Merger Agreement (Ev3 Inc.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of By approving this Agreement and thereby the Merger transactions contemplated hereby or by the Company executing and delivering a Letter of Transmittal, each Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted authorized and appointed (and by its execution of this Agreement Shareholder Representative as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent such Person’s representative and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of such Person with respect to this Agreement and the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, Escrow Agreement and to execute take any and all such documents as the actions and make any decisions required or permitted to be taken by Shareholder Representative shall deem necessary pursuant to this Agreement or appropriate in connection with the transactions contemplated by this Escrow Agreement, including the powerexercise of the power to:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders give and to transact matters of litigation or other Proceedingsreceive notices and communications;
(ii) authorize delivery to execute and deliver all amendmentsParent of cash from the Purchase Price Adjustment Escrow Fund (or, waiversif necessary, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary Indemnification Escrow Fund) in satisfaction of any amounts owed to Parent pursuant to Section 2.12(f) or appropriate from the Indemnification Escrow Fund in connection with the consummation satisfaction of the transactions contemplated claims for indemnification made by this AgreementParent pursuant to Article VIII;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior agree to, at negotiate, enter into settlements and compromises of, and comply with orders or after the Closingotherwise handle any other matters described in Section 2.12(f);
(iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to receive funds claims for the payment of expenses of the Equityholders and apply such funds in payment for such expensesindemnification made by Parent pursuant to Article VIII;
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to do Article VIII;
(vi) execute and deliver all documents necessary or refrain from doing desirable to carry out the intent of this Agreement and any further act Ancillary Document (including the Escrow Agreement);
(vii) make all elections or deed on behalf of decisions contemplated by this Agreement and any Ancillary Document (including the Equityholders that the Escrow Agreement);
(viii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative deems in complying with its duties and obligations; and
(ix) take all actions necessary or appropriate in its sole discretion the good faith judgment of Shareholder Representative for the accomplishment of the foregoing. Parent shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Parent relating to the subject matter defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and shall be final, binding and conclusive upon each such Person. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Agreement as fully Section, including the power of attorney granted hereby, are independent and completely as the Equityholders could do if personally present; and
(vi) to receive service severable, are irrevocable and coupled with an interest and shall not be terminated by any act of process in connection with any claims under this Agreementone or more Shareholders, or by operation of Law.
(b) The Shareholder Representative may resign at any time, and may be removed for any reason or replaced only no reason by the vote or written consent of a majority in interest of the Shareholders according to each Shareholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Shareholder Representative resign or be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon delivery the resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice to is received by Parent; provided, that until such notice is received, Parent, Merger Sub and the Surviving Corporation by shall be entitled to rely on the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation decisions and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction actions of the prior Shareholder Representative as described in all matters referred to herein. Section 9.01(a) above.
(c) The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable to the Equityholders Shareholders for any Damages actions taken pursuant to this Agreement or the Equityholders may suffer by the performance of its duties under this Escrow Agreement, other than Damage arising from willful violation of except to the law or gross negligence in the performance of its duties under this Agreement as extent such actions shall have been determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of the Equityholders agrees that the counsel, accountants and other professionals and experts retained by Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs conclusive evidence of good faith). The Shareholders shall severally and expenses reasonably incurred by the not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Shareholder Representative on demand from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with actions taken its activities as Shareholder Representative under this Agreement and the Escrow Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Shareholder Representative, Shareholder Representative pursuant shall reimburse the Shareholders the amount of such indemnified Representative Loss attributable to the terms hereof such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied: (including the hiring of legal counsel or advisors and the incurring of legal fees and other costsi) from the Shareholder Representative Expense Fund. In ; and (ii) to the event such recovery is precluded or unattainable for over thirty days after demand thereof extent the amount of the Representative Losses exceeds amounts available to Shareholder Representative under (i), from the Shareholder Representative Expense FundShareholders, each severally and not jointly (in accordance with their Pro Rata Shares). As soon as practicable after the date on which the final obligation of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement and the Escrow Agreement have been discharged or such other date as Shareholder Representative deems appropriate, the Escrow Agent shall pay any amounts remaining in the Shareholder Representative Fund to the Shareholders in accordance with their Pro Rata Shares, as set forth in the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Northwest Pipe Co)
Shareholder Representative. (aA) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and ▇▇▇▇▇▇ van der Hooning shall have irrevocably be constituted and appointed as agent ("SHAREHOLDER REPRESENTATIVE") for and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders shareholders (pursuant to the Instrument of Release, Consent and Appointment of Shareholder Representative) to be signed by each such shareholder as contemplated by Section 6.5(b) hereof) to give and receive notices and communications, to agree to, negotiate, and enter into, on behalf of all shareholders, amendments, consents and waivers under this Agreement (including Section 5.2 hereof) and the Escrow Agreement, to enter into and administer, on behalf of the Company shareholders, the Escrow Agreement, to authorize delivery to Parent of the Parent Common Stock or other property from the Escrow Fund in accordance with the Escrow Agreement, and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver take all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems actions necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction judgment of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine for the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity accomplishment of the service thereof, or foregoing. Such agency may be changed by the jurisdiction holders of a majority in interest of the court issuing any judgment or orderCompany shareholders from time to time upon not less than 10 days' prior written notice to Parent. The No bond shall be required of the Shareholder Representative may act in reliance upon any signature believed by it to be genuineRepresentative, and may assume that such person has been properly authorized to do so. The the Shareholder Representative shall act receive no compensation for the Equityholders on all of the matters set forth in this Agreement in the manner his services. Notices or communications to or from the Shareholder Representative believes shall constitute notice to be in the best interests or from each of the Equityholders and consistent with the obligations under this Agreement, but the Company shareholders.
(B) The Shareholder Representative shall not be responsible liable for any act done or omitted hereunder or under the Escrow Agreement as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the Equityholders advice of counsel shall be conclusive evidence of such good faith. The Company shareholders shall severally indemnify the Shareholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(C) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Company's and Parent's officers and employees for any Damages the Equityholders may suffer by the performance purposes of performing its duties under this Agreementand exercising its rights hereunder, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees provided that the Shareholder Representative shall be entitled treat confidentially and not disclose any nonpublic information from or about the Company or Parent to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative anyone (except on demand in connection with actions taken by the Shareholder Representative pursuant a need to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event know basis to individuals who agree to treat such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselinformation confidentially).
Appears in 1 contract
Shareholder Representative. (a) Each ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby appointed as the “Shareholder Representative”, whose appointment will be ratified by the shareholders of the EquityholdersCompany prior to the Effective Time pursuant to the Accredited Shareholder Agreements and Letters of Transmittal and the Unaccredited Shareholder Agreements and Letters of Transmittal which are delivered prior to the Effective Time and whose appointment will also be ratified by the Unaccredited Shareholders and Eligible Stock Option Holders after the Effective Time pursuant to each Unaccredited Shareholder Agreement and Letter of Transmittal and each Optionholder Letter of Transmittal, by virtue respectively. The Shareholder Representative shall have the power and authority to act for all purposes under this Agreement on behalf of all of the adoption Eligible Shareholders, Eligible Stock Option Holders and holders of this Shares and Company Stock Options (except Dissenting Shareholders) who have not yet become Eligible Shareholders or Eligible Stock Option Holders. By delivery of his, her or its respective Accredited Shareholder Agreement and thereby the Merger by Letter of Transmittal, Unaccredited Shareholder Agreement and Letter of Transmittal, or Optionholder Letter of Transmittal, as applicable, each former shareholder of the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and holder of a Company Stock Option shall be deemed at the Effective Time to have irrevocably constituted and appointed (and by the Shareholder Representative as his, her or its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (and agent to act for such shareholder or holder of Company Stock Option within the “Shareholder Representative”), scope of the Equityholders receiving consideration hereunder authority given to act the Shareholder Representative and in accordance with and pursuant to the other terms and conditions described in the nameattached Exhibit J and made a part hereof, place including, without limitation, the authority to direct the Paying Agent to receive, invest, spend and stead distribute the portion of the Equityholders Merger Consideration payable to the Paying Agent and the authority to direct the Indemnification Escrow Agent to receive, invest, spend and distribute the Escrowed Property pursuant to the Indemnification Escrow Agreement. All reasonable fees and expenses incurred by the Shareholder Representative in connection with this Agreement shall be borne by the transactions contemplated Eligible Shareholders on a pro rata basis. The Indemnification Escrow Agent is authorized to reimburse the Shareholder Representative for any expenses of accountants, advisors and other experts, attorney’s fees, other professionals’ fees or any other fees, costs and expenses actually incurred by this Agreementthe Shareholder Representative in connection with defending, in accordance with settling or satisfying any Actions or Orders that relate to the terms and provisions of this Agreement, and to act on behalf performance of the Equityholders Shareholder Representative’s obligations when acting in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents a capacity as the Shareholder Representative shall deem necessary or appropriate in connection with (collectively, “Costs and Fees”) solely at the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction direction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionRepresentative, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity verification of the service thereofCosts and Fees, or the jurisdiction solely out of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, Costs and may assume that such person has been properly authorized to do soFees Escrow Amount. The Shareholder Representative shall act for only direct the Equityholders on all of Indemnification Escrow Agent to distribute the matters set forth in this Agreement in the manner Costs and Fees to the Shareholder Representative believes to be in connection with Costs and Fees. Parent, Sub, the best interests of the Equityholders Surviving Corporation, Paying Agent and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative Indemnification Escrow Agent shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by rely on the written instructions of the Shareholder Representative on demand in connection with and shall be protected from any liability of any kind for actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event in reliance upon such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselwritten instructions.
Appears in 1 contract
Sources: Merger Agreement (Blackboard Inc)
Shareholder Representative. (a) Each 2.14.1. By approving the Merger at a special meeting of the Equityholders, Shareholders or by virtue written consent of the adoption Shareholders and/or by executing and delivering the Support Agreement, and/or a Letter of this Agreement Transmittal and thereby accepting a portion of the Merger by the Consideration, each Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and Equityholder shall have irrevocably constituted authorized and appointed (the Shareholder Representative and by any replacement representative appointed pursuant to Section 2.14.2, with full power of substitution and resubstitution, as his, her or its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive representative and true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder and agent to act in the his, her or its name, place and stead of the Equityholders with respect to all matters arising in connection with the transactions contemplated by this Agreement, including, without limitation, the power and authority, in accordance with his sole discretion, to:
(a) take any action contemplated to be taken by the terms and provisions of Company Equityholders under this Agreement, and including, without limitation, pursuant to act on behalf Section 9 of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iiib) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement, including, without limitation, with respect to execute and deliver all amendments and waivers any indemnification claim pursuant to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally presentSection 9; and
(vic) to receive service of process make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with any claims under this Agreement, including, without limitation, pursuant to Section 9.
2.14.2. The appointment of the Shareholder Representative may not be revoked except in accordance with this Section 2.14.2.
(a) The Shareholder Representative may resign at any time on five (5) Business Days' written notice to Parent and the Company Equityholders. The Shareholder Representative may be replaced from time to time (including following resignation of the Shareholder Representative) by majority vote of those Company Equityholders entitled to receive any portion of the Merger Consideration based upon their relative interests in the Merger Consideration, upon notice given to Parent, which replacement shall be effective one (1) Business Day after receipt of such notice by Parent. If at the time of any such replacement the deadline hereunder for Parent to provide notice to the Shareholder Representative with respect to any indemnification claim or action to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall be extended such number of days that is fifteen (15) days after Parent's receipt of such notice of replacement.
(b) The In performing the functions specified in this Agreement, the Shareholder Representative may will not be removed liable to any Person including, without limitation, for any actions or replaced only upon delivery of written notice to the Surviving Corporation omissions taken by the Company Shareholders holding at least a majority Shareholder Representative, in the absence of outstanding shares of Company Common Stock as of immediately prior to fraud or willful misconduct on the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction part of the Shareholder Representative in all matters referred to hereinRepresentative. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power By approving the Merger or receiving a portion of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated thereinMerger Consideration, the propriety or validity of Company Equityholders have accepted the service thereof, or limitations on the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act Representative's liability set forth in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do sothis Section 2.14.2(b). The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible entitled to the Equityholders any fee, commission or other compensation for any Damages the Equityholders may suffer by the performance of its duties under this Agreementservices as Shareholder Representative, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover but any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof of this Agreement (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from shall be reimbursed to the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by Company Equityholders on a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselpro rata basis.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Group, LLC and each of the Shareholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint D▇▇▇▇▇ ▇. ▇▇▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementShareholders to give and receive notices and communications, to do authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or refrain from doing all by any such further acts Shareholder against any Indemnified Party or any dispute between any Indemnified Party and thingsany such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of outstanding shares the Escrow Period, the resolution of Company Common Stock as all Unresolved Claims and the satisfaction of immediately all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Effective TimeShareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. ParentA decision, act, consent or instruction of the Surviving Corporation Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and any other Person Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon Escrow Agent and Parent are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of The Shareholder Parties hereby collectively and irrevocably constitute and appoint the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement Representative as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, their exclusive and lawful agent and attorney-in-fact (fact, with full power and authority, in the “name of and for and to act on behalf of all the Shareholder Representative”), Parties or in the name of the Equityholders receiving consideration hereunder Shareholder Representative (i) to act in the name, place take any and stead all actions on behalf of the Equityholders in connection Shareholder Parties with respect to the transactions contemplated by this Agreement, as the Shareholder Parties could take if acting individually including settlement, compromise and resolution, with respect to all matters arising under this Agreement for which the Shareholder Representative has been provided with authority, responsibility, management or control in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents cases as the Shareholder Representative shall may deem necessary desirable or appropriate necessary, (ii) to give and receive all notices, consents, wire transfer payment instructions for the Shareholder Parties, certificates, agreements, waivers, releases, elections, accountings, reports and other communications in connection with the transactions contemplated by this Agreementforegoing, including the power:
(iiii) to act for the Equityholders with regard assert any claim, action, proceeding or investigation against Parent, and (iv) to matters pertaining to indemnification referred to in this Agreement, including the power to compromise refrain from enforcing any indemnity claim on behalf right of the Company Shareholders and to transact matters Shareholder Parties or any of litigation them or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary arising out of or appropriate under or in connection with the consummation of any manner related to this Agreement or the transactions contemplated by this Agreement;
hereby. The Shareholder Representative is also authorized (iiix) to execute and deliver all amendments and waivers to this Agreement that as the Shareholder Representative deems necessary or appropriatenecessary, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary advisable or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementof the foregoing matters and (y) to execute and deliver such other miscellaneous certificates and incidental documents required of any Shareholder Party after the Closing; and all such amendments, agreements certificate and documents shall be fully binding on the Shareholder Parties in all respects and for all purposes.
(b) The foregoing appointment shall be an agency coupled with an interest, and all authority conferred hereby is irrevocable and is not subject to termination by any Shareholder Party, or by operation of law, whether by death, incapacity or the occurrence of any other event.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby accepts his appointment as the Shareholder Representative may on behalf of all the Shareholder Parties pursuant to this Agreement.
(d) If any death, incapacity or other such event with respect to any Shareholder should occur, any action taken, or to be removed taken, by the Shareholder Representative shall be as valid as if such death, incapacity or replaced only upon delivery other event had not occurred, regardless of written whether or not the Shareholder Representative or Parent shall have received notice of such death, incapacity or other event.
(e) Any communication, notice, consent, certificate, agreement, waiver, election, accounting, report or any other matter delivered to the Surviving Corporation Shareholder Representative in accordance with the provisions of this Agreement shall be deemed delivered to all the Shareholder Parties. Every Party to this Agreement and any other interested Person may rely on any communications, notices, consents, certificates, agreements, waivers, elections, accountings, reports and any other matter sent by the Company Shareholders holding Shareholder Representative as if same had been sent by all the Shareholder Parties. The Shareholder Parties hereby waive any and all claims against Parent based upon the actual or alleged lack of authorization of the Shareholder Representative with respect to any action taken by Parent in reliance on the authority of the Shareholder Representative.
(f) If the Shareholder Representative resigns or shall be unable to serve as the Shareholder Representative, then a successor Shareholder Representative shall be selected by the Shareholder Parties who held at least a majority of outstanding shares of all Company Common Stock as of Shares immediately prior to the Effective TimeClosing, and the Shareholder Parties shall deliver written notice of such appointment to Parent.
(g) To the extent the Shareholder Representative has authority to act on such matter pursuant to this Agreement, Parent and its Affiliates (including, after the Closing, the Surviving Company) are entitled to deal exclusively with the Shareholder Representative on all matters relating to this Agreement, and the other Ancillary Agreements and the transactions contemplated hereby. Any action taken or not taken or decisions, communications or writings made, given or executed by the Shareholder Representative, for or on behalf of any Shareholder Party, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Shareholder Party. Parent and its Affiliates (including, after the Closing, the Surviving Company) shall be entitled to disregard any decisions, communications or writings made, given or executed by any Shareholder in connection with this Agreement and any other agreement or document contemplated hereby and the transactions contemplated by this Agreement unless the same is made, given or executed by the Shareholder Representative. Notwithstanding anything to the contrary set forth herein, from and after the Closing, none of Parent, the Surviving Corporation and Company or any other Person may conclusively and absolutely relyof their respective Affiliates, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to shall be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders liable for any Damages the Equityholders may suffer by the performance of its duties under this Agreementliability to any Person, other than Damage arising from willful violation of the law including any Shareholder, for any action taken or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions not taken by the Shareholder Representative pursuant to or for any act or omission taken or not taken in reliance upon the terms hereof (actions taken or not taken or decisions, communications or writings made, given or executed by the Shareholder Representative, including the hiring any failure of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In (so long as such failure is not the event such recovery is precluded result of any act or unattainable for over thirty days after demand thereof from failure to act of Parent) to distribute (or cause to be distributed) or subdivide (or cause to be subdivided) in the correct amounts any payments made to the Shareholder Representative Expense Fundby Parent or its Subsidiaries (including, each of after the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of Closing, the Surviving Company) for distribution to any and all liabilitiesShareholder, lossesamong Shareholders or any other Person; it being understood that once Parent or its Affiliates (including, damagesafter the Closing, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted Surviving Company) has made a payment to be taken by the Shareholder Representative under made pursuant to this Agreement or the Escrow any other Ancillary Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions terms of the relevant agreement, to the Shareholder Representative for distribution to any Shareholder, among Shareholders or to such counselother Person, such payment shall constitute a complete discharge of the relevant payment obligation of Parent or such Affiliate.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
Shareholder Representative. (a) Each of In the Equityholders, by virtue of the adoption of this Agreement and thereby event that the Merger is approved by the Company Shareholder ApprovalStockholders, hereby appoints GF Private Equity Groupand effective upon such approval without further act of any Stockholder, LLC and Robert Sires shall have irrevocably constituted and be appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive their true and lawful representat▇▇▇, ▇▇▇▇▇, agent and attorney-in-fact (the “"Shareholder Representative”)") for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders Stockholders in connection with or relating to the transactions contemplated by this Agreement, Transaction Documents and the Merger and in accordance with the terms and provisions of this Agreementprocedures approved by the Stockholders, and to act on behalf of the Equityholders in any Proceeding involving this Agreementincluding, without limitation, to do or refrain from doing all such further acts give and thingsreceive notices and communications, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Merger, to review and confirm the amount of the Final Net Working Capital, to receive and deliver amounts comprising the Closing Merger Consideration and the Post-Closing Merger Consideration, to authorize delivery of cash from the Escrow Amount in satisfaction of claims under this Agreementby a Purchaser Indemnified Party pursuant to Article 9 hereof, to object to or accept any claims by a Purchaser Indemnified Party pursuant to Article 9 hereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, to make any payment to a Dispute Indemnified Party pursuant to Article 9, and to take all actions necessary or appropriate in the sole opinion of the Shareholder Representative for the accomplishment of the foregoing. Such agency may be changed at any time and from time to time by the action of Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger, and shall become effective upon not less than thirty (30) days prior written notice to the Parent. Except as provided in the foregoing sentence, in the event that for any reason the most recent Shareholder Representative shall no longer be serving in such capacity, including, without limitation, as a result of the death, resignation or incapacity of the Shareholder Representative, the outgoing Shareholder Representative shall appoint a successor Shareholder Representative, and if the outgoing Shareholder Representative fails or is unable to appoint a successor, then the Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger shall appoint such successor, such that at all times there will be a Shareholder Representative with the authority provided hereunder. Any change in the Shareholder Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to the Parent. The Shareholder Representative shall receive such compensation as shall be determined by the Board of Directors of the Company or by any one or more individuals authorized to determine the same. Notices or communications to or from the Shareholder Representative by or to any of the parties to the Transaction Documents shall constitute notice to or from each of the Stockholders.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative in the absence of gross negligence and willful misconduct on his or her part (which shall be deemed not to exist if the Shareholder Representative acted in good faith). The Stockholders shall jointly and severally indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any and all damages, actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) (collectively, "Losses") which may be removed sustained or replaced only upon delivery of written notice to the Surviving Corporation suffered by the Company Shareholders holding at least Shareholder Representative in connection with the administration of its duties hereunder, except where such Losses arise from or are the result of the Shareholder Representative's gross negligence or willful misconduct (which shall be deemed not to exist if the Shareholder Representative acted in good faith).
(c) Any decision, act, consent or instruction taken or given by the Shareholder Representative pursuant to this Agreement shall be and constitute a majority decision, act, consent or instruction of outstanding shares of Company Common Stock as of immediately prior to all Stockholders and shall be final, binding and conclusive upon each such Stockholder, and the Effective Time. Parent, Escrow Agent and the Surviving Corporation and any other Person Parent may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of each and every Stockholder. The Shareholder Representative may act in reliance upon Escrow Agent and the Parent are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s ; provided that such acts are taken in good faith and absent gross negligence and willful violation misconduct on the part of the law or gross negligence in Escrow Agent and the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselParent respectively.
Appears in 1 contract
Shareholder Representative. (a) Each The Purchaser hereby irrevocably constitutes and appoints, effective as of the Equityholdersdate hereof, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval▇▇▇▇▇ ▇▇▇▇ (together with his permitted successors, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as a “Shareholder Representative”), GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive Purchaser’s true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders enter into any agreement in connection with the transactions contemplated by this AgreementAgreement and any transactions relating to the Exchange Transaction, in accordance with the terms and provisions of this Agreement, and to act on behalf exercise all or any of the Equityholders in powers, authority and discretion conferred on him under this Agreement or any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate agreements entered into in connection with the transactions Exchange Transaction, to waive any terms and conditions of any such agreements, to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, action, undertaking, suit, claim, action or proceeding arising with respect to any transaction contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders such agreements and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with the consummation of the transactions contemplated by this Agreement;
(iii) to execute an interest and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to hereinirrevocable. The Shareholder Representative may act will not be liable for any action taken or not taken by him in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in connection with his obligations under this Agreement in the manner absence of his own gross negligence or willful misconduct. The Purchaser acknowledges and agrees that the Company and the Shareholder Representative, in effectuating the Exchange Transaction, will be relying upon the representations and warranties contained in Section 3 hereof. The Purchaser will immediately notify the Stockholder Representative in writing if any of the representations and warranties contained in Section 3 hereof become inaccurate in any respect. Unless so notified, the Shareholder Representative believes and the Company may rely on the representations and warranties contained in Section 3 hereof as being accurate and true in all respects as of the date of the closing of the Exchange Transaction. The Purchaser hereby ratifies and confirms and agrees to be ratify and confirm whatever any such attorney as is mentioned in this Clause 5 shall do or purport to do in the best interests exercise or purported exercise of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law all or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunderpowers, authorities and it shall incur no liability discretions referred to the Equityholders in acting in accordance with the opinion and instructions of such counseltherein.
Appears in 1 contract
Sources: Restricted Stock Purchase Agreement (Gourmet Herb Growers Inc)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Group, LLC and each of the Securityholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint R▇▇▇▇▇ ▇▇▇▇▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementSecurityholders to give and receive notices and communications, to do authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Securityholder or refrain from doing all by any such further acts Securityholder against any Indemnified Party or any dispute between any Indemnified Party and thingsany such Securityholder, in each case relating to this Agreement or the transactions contemplated hereby, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Securityholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementSecurityholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Securityholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of outstanding shares the Escrow Period, the resolution of Company Common Stock as all Unresolved Claims and the satisfaction of immediately all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Effective TimeSecurityholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. ParentTo the extent that the amount of funds in the Escrow Fund (after resolution of all Unresolved Claims and the satisfaction of all claims for Losses) is insufficient to reimburse the Shareholder Representative for all Shareholder Representative Expenses, each Securityholder agrees to reimburse the Surviving Corporation Shareholder Representative promptly on demand in proportion to its Pro Rata Portion for any Shareholder Representative Expenses that are not so paid to the Shareholder Representative out of the Escrow Fund. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and any other Person Section 8.4 hereof, shall constitute a decision of the Securityholders and shall be final, binding and conclusive upon the Securityholders; and the Escrow Agent and Parent may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Securityholders. The Shareholder Representative may act in reliance upon Escrow Agent and Parent are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Group, LLC and each of the Shareholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint J▇▇▇ ▇▇▇▇▇▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders Shareholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Proceeding involving Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against the Escrow Fund and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3rds) interest of the Escrow Fund agree to do or refrain from doing all such further acts removal and thingsto the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and to execute all such documents as the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective TimeShareholder Representative. ParentA decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may act in reliance rely upon any instructionsuch decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of the Equityholders Shareholders. The Escrow Agent and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible Parent are hereby relieved from any liability to the Equityholders any person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Altiris Inc)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, Shareholders hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as the Shareholder Representative, GF Private Equity Group, LLC hereby accepts as its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)fact, for and on behalf of each of the Equityholders receiving consideration hereunder Shareholders to act give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in the namesatisfaction of claims by any Indemnified Party, place to object to such payments, to agree to, negotiate, enter into settlements and stead compromises of, and demand arbitration and comply with orders of the Equityholders courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in connection with each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by this Agreement, in accordance with the terms and provisions of this Agreement. Such agency may be changed by SCG from time to time upon not less than thirty (30) days' prior written notice to the Purchaser (and each of the Management Shareholders expressly acknowledges the sole and absolute discretion of SCG to make such determination). A vacancy in the position of Shareholder Representative may be filled by SCG. No bond shall be required of the Shareholder Representative, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary or appropriate in connection with the consummation shall constitute notice to each of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice to reasonable judgment. The Shareholders shall each indemnify the Surviving Corporation Shareholder Representative and hold the Shareholder Representative harmless against any loss, Liability, or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholder Representative ("Shareholder Representative Expenses"). A decision, act, consent, or instruction of the Shareholder Representative, including but not limited to an amendment or waiver of this Agreement pursuant to Article VIII hereof, shall constitute a decision of each of the Shareholders holding at least a majority and shall be final, binding and conclusive upon each of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, Shareholders; and the Surviving Corporation Escrow Agent and any other Person the Purchaser may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionas being the decision, notice, certification, demandact, consent, authorization, receipt, power or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify Shareholders. The Escrow Agent and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting Purchaser are hereby relieved from any action taken liability to any Person for any acts done by them in accordance with such decision, act, consent or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment instruction of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Shareholder Approvalrequisite vote of the Shareholders, hereby appoints GF Private Equity Group, LLC and each of the Shareholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint TCB as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative”). The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of the Equityholders receiving consideration hereunder claims by any Indemnified Party, to act object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in the name, place and stead of the Equityholders in connection with each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in accordance with the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement, Agreement and to act on behalf of the Equityholders in consent to any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate amendment hereof thereof in its sole discretion relating to the subject matter of this Agreement capacity as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholder Representative.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice to reasonable judgment. The Shareholders shall indemnify the Surviving Corporation Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to and shall be final, binding and conclusive upon the Effective Time. Parent, Shareholders; and the Surviving Corporation Escrow Agent and any other Person Parent may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power all questions arising under this Agreement seek advice of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuinelegal counsel, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth anything done, omitted or suffered in this Agreement in the manner good faith by the Shareholder Representative believes to be in the best interests of the Equityholders and consistent accordance with the obligations under this Agreementsuch advice, but the Shareholder Representative shall not be responsible liable to the Equityholders any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any Damages the Equityholders may suffer by the performance decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement The Company and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have Representative represent to Acquiror that each Shareholder has irrevocably constituted and appointed (and by its execution of this Agreement ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and such Shareholder’s attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders agent in connection with the transactions contemplated by this Agreement, in accordance with the terms execution and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement. This power is irrevocable and coupled with an interest, and shall not be affected by the death, incapacity, illness, dissolution or other than Damage arising from willful violation inability to act of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees such Shareholder.
(b) The Company and Shareholder Representative represent to Acquiror that each Shareholder has irrevocably granted the Shareholder Representative shall full power and authority: (i) to execute and deliver, on behalf of such Shareholder, and to accept delivery of, on behalf of such Shareholder, the Ancillary Agreements and such other documents as may be entitled deemed by the Shareholder Representative, in its sole discretion, to recover be appropriate to complete the Transactions; (ii) to endorse and to deliver on behalf of such Shareholder, transfer instruments representing the shares of Company Common Stock to be exchanged by such Shareholder at the Closing; (iii) to acknowledge receipt at the Closing of the consideration payable to such Shareholder at the Closing, and to designate the manner of payment of such consideration; (iv) to (A) negotiate and compromise, on behalf of such Shareholder, any indemnifiable amounts hereunder dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement; and (B) execute, on behalf of such Shareholder, any settlement agreement, release or other out-of-pocket costs document with respect to such dispute or remedy; (v) to give or agree to, on behalf of such Shareholder, any and expenses reasonably incurred all consents, waivers, amendments or modifications, deemed by the Shareholder Representative, in its sole discretion, to be necessary or appropriate, under this Agreement, and, in each case, to execute and deliver any documents that may be necessary or appropriate in connection therewith; (vi) to enforce, on behalf of such Shareholder, any claim against Acquiror arising under this Agreement; (vii) to engage attorneys, accountants and agents at the expense of such Shareholder; (viii) to agree, on behalf of such Shareholder, to amend this Agreement (other than this Section 10.02) or any of the instruments to be delivered to Acquiror by such Shareholder pursuant to this Agreement; and (ix) to give such instructions and to take such action or refrain from taking such action, on behalf of such Shareholder, as the Shareholder Representative deems, in its sole discretion, necessary or appropriate to carry out the provisions of this Agreement.
(c) The Company and Shareholder Representative represent to Acquiror that each Shareholder has agreed to the following: (i) in all matters in which action by the Shareholder Representative on demand in connection with actions taken by is required or permitted, the Shareholder Representative pursuant is authorized to the terms hereof (including the hiring act on behalf of legal counsel such Shareholder, notwithstanding any dispute or advisors disagreement between such Shareholder and the incurring of legal fees Shareholder Representative, and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of Acquiror will be entitled to rely on any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement without any liability to, or obligation to inquire of, any Shareholder, notwithstanding any knowledge on the Escrow Agreement, other than part of Acquiror of any such liabilities, losses, damages, claims, costs dispute or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from disagreement; (ii) notice to the Shareholder Representative’s willful violation , delivered in the manner provided in Section 10.01, shall also be deemed to be notice to such Shareholder for purposes of this Agreement; and (iii) the power and authority of the law or gross negligence Shareholder Representative, as described in the performance this Agreement, will continue in force until all rights and obligations of its duties such Shareholder under this Agreement. Agreement will have terminated, expired or been fully performed.
(d) The Company and Shareholder Representative may consult represent to Acquiror that each Shareholder has agreed that, notwithstanding the foregoing, at the request of Acquiror, such Shareholder shall take all actions necessary or appropriate to complete the Transactions (including, with legal counsel respect to such Shareholder, delivery of its selection in the event shares of Company Common Stock and acceptance of the Merger Consideration therefor) individually on such Shareholder’s own behalf, and to deliver any dispute or question as other documents required of such Shareholder pursuant to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselterms hereof.
Appears in 1 contract
Sources: Business Combination Agreement (Fintech Ecosystem Development Corp.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company The Shareholder Approval, Representative is hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed as agent for and on behalf of the Company Shareholders with respect to this Article VIII. The Shareholder Representative shall incur no liability to the Indemnifying Shareholders with respect to any action taken or suffered by he, she or it in reliance upon any note, direction, instruction, consent, statement or other documents believed by he, she or it to be genuinely and duly authorized, nor for other action or inaction except his, her or its own willful misconduct or gross negligence. The Shareholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel and the Shareholder Representative shall not be liable to the Indemnifying Shareholders for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice.
(and by its execution b) In the event of this Agreement as the death or permanent disability of the Shareholder Representative, GF Private Equity Groupor his, LLC hereby accepts her or its appointment) resignation as the true, exclusive and lawful agent and attorney-in-fact (the “an Shareholder Representative”), a successor Shareholder Representative shall be elected by a majority vote of the Equityholders receiving consideration hereunder Indemnifying Shareholders, with each such Indemnifying Shareholder (or his, her or its successors or assigns) to act in be given a vote equal to the name, place and stead number of votes represented by the shares of stock of the Equityholders in connection with Company held by such Indemnifying Shareholder immediately prior to the transactions contemplated Merger Effective Time. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this AgreementAgreement upon the original Shareholder Representative, and the term "Shareholder Representative" as used herein shall be deemed to include successor Shareholder Representative.
(c) The Shareholder Representative shall have full power and authority to represent the Indemnifying Shareholders, and their successors, with respect to all matters arising under this Article VIII and all actions taken by any Shareholder Representative hereunder shall be binding upon the Indemnifying Shareholders, and their successors, as if expressly confirmed and ratified in accordance with writing by each of them. Without limiting the generality of the foregoing, the Shareholder Representative shall have full power and authority to interpret all of the terms and provisions of this AgreementArticle VIII, to compromise any claims asserted hereunder and to act authorize any release of the Escrow Shares to be made with respect thereto, on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Indemnifying Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Timetheir successors. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with All actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or hereunder shall be evidenced by, and taken upon, the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment written direction of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselmajority thereof.
Appears in 1 contract
Shareholder Representative. The Escrow Shareholders hereby irrevocably authorize, direct and appoint the Shareholder Representative (a) Each of as defined in the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointmentEscrow Agreement) as the truesole and exclusive agent, exclusive and lawful agent and attorney-in-fact and representative of such Persons and such Persons' heirs, representatives and successors to (the “Shareholder Representative”i) take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for the account of the Equityholders receiving consideration hereunder Escrow Shareholders and making any and all determinations which may be required or permitted to act in be taken by the name, place and stead of the Equityholders Escrow Shareholders in connection with this Article IX; and (ii) exercise such rights, power and authority as are incidental to the transactions contemplated foregoing. Any actions, exercises of rights, power or authority and any decisions or determinations made by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary be absolutely and irrevocably binding on each of the Escrow Shareholders as if each such Person personally had taken such action, exercised such rights, power or appropriate authority or made such decision or determination in connection with such Person's individual capacity.
(a) With respect to the transactions contemplated matters covered by or related to this AgreementArticle IX, including the power:
(i) each Escrow Shareholder irrevocably relinquishes its right to act for independently and other than through the Equityholders Shareholder Representative with regard respect to matters pertaining such subject matter (except with respect to indemnification referred to in this Agreementthe appointment of a successor Shareholder Representative), including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) no Escrow Shareholder shall have right to execute institute any suit, action or proceeding against HPL, Merger Sub, the Surviving Corporation or FabCentric or the with respect to any such matter, any such right being irrevocably and deliver all amendmentsexclusively delegated to the Shareholder Representative. Without limiting the generality of the foregoing, waivers, ancillary agreements, stock powers, certificates and documents that any notice hereunder delivered to HPL or an Indemnitee by an Escrow Shareholder other than through the Shareholder Representative deems necessary shall be of no effect, and each notice delivered by HPL or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) any other Indemnitee to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriateshall be effective as against each Escrow Shareholder; provided, whether prior to, that HPL and other Indemnitees may elect at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its their sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) give effect to receive service of process in connection with any claims under this Agreementnotice delivered by any Escrow Shareholder.
(b) The Shareholder Representative may be removed or replaced only resign at any time upon delivery of thirty days' notice by submitting a written notice resignation to the Surviving Corporation by the Company HPL, with copies to all Escrow Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters their address set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Escrow Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share death, physical or mental incapacity or resignation of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation , the Escrow Shareholders shall promptly (and in any event with thirty (30) days of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions notice of such counsel.event) appoint a successor Shareholder Representative. ARTICLE X
Appears in 1 contract
Shareholder Representative. (a) Each of Prior to the EquityholdersClosing Date, by virtue of the adoption of this Agreement and thereby Shareholders shall select a Person (the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as "Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment") as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place for and stead on behalf of the Equityholders all such Shareholders with respect to all matters arising in connection with Article 8 and the transactions contemplated by this AgreementEscrow Agreement as defined in Section 9.1(i), including, without limitation, the power and authority, in accordance with the terms and provisions of this Agreementhis or her sole discretion, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the powerto:
(i) to act for negotiate, determine, defend and settle any dispute which may arise under Article 8 or the Equityholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;; and
(ii) to execute make, execute, acknowledge and deliver all amendmentsany releases, waiversassurances, ancillary receipts, requests, instructions, notices, agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary any other instruments, and to generally do any and all things and to take any and all actions which may be requisite, proper or appropriate advisable in connection with Article 8 or under the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Escrow Agreement.
(b) The Shareholders may replace the Shareholder Representative may be removed or replaced only upon delivery of written notice to at any time with a substitute Shareholder Representative who shall have all the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation powers and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction responsibilities of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner Section 6.10.
(c) Neither the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this AgreementRepresentative, but the nor any substitute Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this AgreementRepresentative, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled liable to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable Person for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted any omission to be taken by act, in good faith, in connection with the Shareholder Representative's responsibilities as Shareholder Representative.
(d) Promptly following his or her selection, the Shareholder Representative, or any substitute Shareholder Representative, shall provide Parent with a written certification of his or her selection and of the address for notices to such Shareholder Representative. Parent may thereafter deal exclusively with the Shareholder Representative under in connection with the claims procedure in reliance on such certification. Whenever in connection with the provisions of this Agreement or the Escrow Agreement, Parent shall receive any certificate or other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting written correspondence from the Shareholder Representative’s willful violation of the law , such certificate or gross negligence other written correspondence shall be full authorization to Parent for any action taken or suffered in the performance of its duties good faith by it under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof of this Agreement or its duties hereunder, and it shall incur no liability to the Equityholders Escrow Agreement in acting in accordance with the opinion and instructions of such counselreliance thereon.
Appears in 1 contract
Shareholder Representative. (a) Each By virtue of the Equityholdersexecution and delivery of a Joinder Agreement, by virtue of and the adoption of this Agreement and thereby approval of the Merger Mergers by the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Groupeach of the Equityholders shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement an individual, as Shareholder Representativeits, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful his or her agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders Indemnifying Parties to give and receive notices and communications in any Proceeding involving respect of indemnification claims under this AgreementAgreement to be recovered against the Holdback Fund, to do authorize payment to any Indemnified Party from the Holdback Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or refrain from doing all by any such further acts Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and thingsany such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to execute take all such documents as the Shareholder Representative shall deem other actions that are either (i) necessary or appropriate in connection with the transactions contemplated by this Agreement, including judgment of the power:
(i) to act Shareholder Representative for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf accomplishment of the Company Shareholders and to transact matters of litigation foregoing or other Proceedings;
(ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to execute and deliver all amendmentstime upon not less than thirty (30) days prior written notice to Parent; provided, waivershowever, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation may not be removed unless holders of a two- thirds interest of the transactions contemplated by this Agreement;
(iii) Holdback Fund agree to execute such removal and deliver all amendments and waivers to this Agreement that the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Shareholder Representative deems necessary or appropriateother vacancy in the position of Shareholder Representative, whether prior to, at or after such vacancy may be filled by the Closing;
(iv) to receive funds for the payment holders of expenses a majority in interest of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf Holdback Fund. No bond shall be required of the Equityholders that Shareholder Representative. Notices or communications to or from the Shareholder Representative deems necessary after the Closing shall constitute notice to or appropriate in its sole discretion relating to from the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementIndemnifying Parties.
(b) The A decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and Parent may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionas being the decision, noticeact, certification, demand, consent, authorization, receipt, power of attorney consent or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity instruction of the service thereofIndemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or the jurisdiction instruction of the court issuing any judgment or order. Shareholder Representative.
(c) The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith. The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the Equityholders for any Damages extent attributable to such gross negligence or willful misconduct. If not paid directly to the Equityholders may suffer Shareholder Representative by the performance Indemnifying Parties, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Holdback Fund at such time as remaining amounts would otherwise then be distributable to the Indemnifying Parties (which, for the avoidance of doubt, shall not include any amounts that remain held in the Holdback Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Shareholder Representative to be paid from the Expense Fund and the Holdback Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its duties under own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the The Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs use the Expense Fund in order to fund all Shareholder Representative Expenses. Following the termination of the Holdback Fund, the resolution of all Unresolved Claims and expenses reasonably incurred the satisfaction of all claims made by Indemnified Parties for Losses hereunder, the Shareholder Representative on demand shall have the right to recover Shareholder Representative Expenses incurred in connection with actions taken by excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Holdback Fund, prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to Parent a certificate setting forth the Shareholder Representative pursuant to Expenses actually incurred and not previously recovered. For the terms hereof (including the hiring avoidance of legal counsel or advisors and the incurring of legal fees and other costs) from doubt, while this section allows the Shareholder Representative to be paid from the Holdback Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Shareholder Representative Expenses as they are incurred, to the extent the Expense FundFund is insufficient or unavailable. In A decision, act, consent or instruction of the event Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and Parent may rely upon any such recovery is precluded decision, act, consent or unattainable for over thirty days after demand thereof from instruction of the Shareholder Representative Expense Fundas being the decision, each act, consent or instruction of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting Indemnifying Parties. Parent is hereby relieved from any action taken liability to any person for any acts done by them in accordance with such decision, act, consent or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment instruction of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The Shareholders hereby designate C▇▇▇▇ L▇▇▇ ▇▇▇ as the sole and exclusive representative of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact Shareholders (the “Shareholder Representative”), ) from and after the date hereof with respect to all matters arising under this Agreement with full powers of the Equityholders receiving consideration hereunder substitution to act in the name, place and stead of the Equityholders in connection Shareholders with respect to the transactions contemplated by this Agreement, in accordance with performance on behalf of the Shareholders under the terms and provisions of this Agreement, as the same may be from time to time amended, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholder Representative may shall be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parentdeemed coupled with an interest and shall be irrevocable, the Surviving Corporation and any other Person (including IGPAC) may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction actions of the Shareholder Representative as the acts of the Shareholders in all matters referred to hereinin this Agreement. The Shareholders, by execution of this Agreement, hereby ratify and confirm all that the Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney shall do or other writing delivered cause to it be done by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity virtue of the service thereof, or the jurisdiction Shareholder Representative’s appointment as attorney-in-fact and agent of the court issuing Shareholders and, as such, shall have full power and authority, among other things, to enter into any judgment amendment of this Agreement (or order. The waive any rights or obligations hereunder) in the name and on behalf of Shareholders as the Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soRepresentative. The Shareholder Representative shall act for the Equityholders Shareholders on all of the matters set forth in this Agreement in the such manner as the Shareholder Representative believes to be in the best interests interest of the Equityholders and consistent with the obligations under this AgreementShareholders as a whole, but the Shareholder Representative shall not be responsible to the Equityholders any Shareholder for any Damages the Equityholders loss or damage any Shareholder may suffer by reason of the performance by the Shareholder Representative of its such Shareholder Representative’s duties under this Agreement, other than Damage loss or damage arising from fraud, willful violation of the law misconduct or gross negligence bad faith in the performance of its such Shareholder Representative’s duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each Agreement.
(c) The Shareholder Representative is authorized to act on behalf of the Equityholders agrees that Shareholders notwithstanding any dispute or disagreement among the Shareholder Representative Shareholders, and any Person shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative rely on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement without liability to, or obligation to inquire of, the Escrow AgreementShareholders. If C▇▇▇▇ L▇▇▇ ▇▇▇ ceases to function in such capacity for any reason whatsoever, other than such liabilitiesor is unable, lossesdue to incapacity or otherwise, damagesto serve as the Shareholder Representative, claimsthen the Shareholders shall select a successor Shareholder Representative reasonably satisfactory to IGPAC; provided, costs or expenses determined by a non-appealabe order or judgment however, that IGPAC shall be provided at least ten days’ prior written notice of the selection of a successor; provided further however, that if for any reason no successor has been appointed within ten days, then any of the Shareholders shall have the right to petition a court or tribunal of competent jurisdiction arising out for appointment of or resulting from a successor Shareholder Representative. Each successor Shareholder Representative, if required to serve, shall sign an acknowledgment in writing agreeing to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative’s willful violation . Each successor Shareholder Representative shall have all of the law or gross negligence in power, authority, rights and privileges conferred by this Agreement upon the performance of its duties under this Agreement. The original Shareholder Representative may consult with legal counsel of its selection in and the event of term “Shareholder Representative” as used herein shall be deemed to include any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselsuccessor Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Israel Growth Partners Acquisition Corp.)
Shareholder Representative. (a) Each of the Equityholders▇▇▇▇ ▇. ▇▇▇▇▇▇, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder ApprovalPh.D., is hereby appoints GF Private Equity Groupirrevocably appointed as representative, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact for the Company and each Shareholder, (i) to give and receive notices and communications relating to the “Shareholder Representative”)transactions and other matters contemplated by this Agreement or the Seller Ancillary Documents, including those relating to adjustments to the Merger Payment and indemnification claims; (ii) to make decisions on behalf of the Equityholders receiving consideration hereunder Company and the Shareholders with respect to act in the nametransactions and other matters contemplated by this Agreement or the Seller Ancillary Documents, place including regarding (A) adjustments to the Merger Payment, (B) indemnification claims, (C) amendments to this Agreement or the Seller Ancillary Documents and stead (D) the defense of third party suits that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such third party suits or claims by the Parent for indemnification; and (iii) to take other actions on behalf of the Equityholders Company and the Shareholders as contemplated by this Agreement or the Seller Ancillary Documents, including the exercise of all rights granted to the Company and the Shareholders under this Agreement or the Seller Ancillary Documents.
(b) The Company and each Shareholder agrees that (i) the provisions of this Section 12.1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies the Company or any Shareholder may have in connection with the transactions contemplated by this AgreementAgreement or the Seller Ancillary Documents, in accordance with (ii) the terms and remedy at law for any breach of the provisions of this AgreementSection 12.1 would be inadequate, and to act on behalf (iii) the provisions of this Section 12.1 shall be binding upon the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts successors and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf assigns of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementeach Shareholder.
(bc) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentA decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in relating to this Agreement or the Seller Ancillary Documents shall constitute a decision for the Company and all matters referred to herein. The Shareholder Representative Shareholders, and shall be final, binding and conclusive upon the Company and the Shareholders, and the Parent may act in reliance rely upon any instructionsuch decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of the Equityholders Company and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionevery Shareholder. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally The Shareholders shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting Parent from any action taken or omitted to be taken by omission on their behalf at the Shareholder Representative under this Agreement request or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment instruction of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The parties agree that ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is hereby appointed as the joint representative for and on behalf of the Equityholdersshareholders of Waterloo (such Persons, by virtue of the adoption of and any other Person duly appointed pursuant to this Agreement and thereby the Merger by the Company Shareholder ApprovalAgreement, hereby appoints GF Private Equity Groupserving as such a representative, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder ) to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing take all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction judgment of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine for the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity accomplishment of the service thereof, or terms of this Agreement upon and after the jurisdiction Closing Date. No bond shall be required of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineRepresentative, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible entitled to the Equityholders receive any compensation for any Damages the Equityholders may suffer by the performance his or her services except as otherwise set forth in this Section 3.5. Notices of its duties under this Agreement, other than Damage arising communications to or from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall constitute notice to or from each of the shareholders of Waterloo. If any Person serving as the Shareholder Representative is no longer able or willing to serve as the Shareholder Representative, a new Shareholder Representative may be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs chosen by the holders of a majority of the shares of Waterloo Common Stock.
(b) Reasonable and necessary fees and expenses reasonably incurred by the Shareholder Representative on demand Representative, in connection with actions taken by its capacity as Shareholder Representative, after the Closing Date shall be reimbursed to the Shareholder Representative by Midland States promptly upon receipt of appropriate documentation of such fees and expenses.
(c) The Shareholder Representative shall not be liable for any act done or omitted in such capacity while acting in good faith, and any act done or omitted pursuant to the terms hereof (including the hiring advice of legal counsel or advisors shall be conclusive evidence of such good faith. The shareholders of Waterloo shall jointly and the incurring of legal fees and other costs) from severally indemnify the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold him or her harmless against any loss, liability or expense incurred without bad faith, gross negligence or willful misconduct and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken in connection with the acceptance or omitted to be taken by the Shareholder Representative under this Agreement administration of his or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreementher duties. The Shareholder Representative may consult with legal counsel of and other necessary experts to advise it with respect to its selection rights and obligations hereunder and shall be fully protected by any act taken, suffered, permitted or omitted in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting good faith in accordance with the opinion and instructions advice of such counselcounsel or experts. Notwithstanding anything set forth in this subparagraph (c) and in subparagraph (b) above, Midland States shall only be liable for fees and expenses of one legal counsel and one tax expert.
(d) Any decision, act, consent or instruction of the Shareholder Representative after the Effective Time in the scope of the Shareholder Representative’s authority as provided in the first sentence of Section 3.5(a) shall constitute a decision of all shareholders of Waterloo and shall be final, binding and conclusive upon every shareholder of Waterloo, and Midland States and the Surviving Corporation may rely upon any decision, act, consent or instruction (in each case whether given orally or in writing) of the Shareholder Representative.
(e) The adoption of this Agreement and the approval of the Merger and the Contemplated Transactions by the shareholders of Waterloo shall constitute approval and ratification by such Persons of: (i) this Agreement and all of the arrangements relating thereto; (ii) the appointment of the Shareholder Representative pursuant to this Agreement; and (iii) the performance of all duties described in this Agreement by the Shareholder Representative on their behalf.
(f) The provisions of this Section 3.5 are intended to be for the benefit of and shall be enforceable by the Shareholder Representative and Midland States.
Appears in 1 contract
Shareholder Representative. (a) Each The Parties have agreed that it is desirable to designate B▇▇▇▇ ▇▇▇▇▇▇ (and if B▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to serve, then M▇▇▇ ▇▇▇▇▇▇) to serve as the representative of the Equityholders, by virtue holders of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact Stock (the “Shareholder Representative”), ) for certain limited purposes as set forth herein. The approval of this Agreement by the holders of the Equityholders receiving consideration hereunder Company Stock will constitute ratification and approval of such designation. The Shareholder Representative will have such power and authority necessary to act in carry out the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and functions assigned to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with under this Agreement and the transactions contemplated by this Escrow Agreement, including the powerpower and authority:
(i) to act for execute and deliver the Equityholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedingsenter into any amendments, modifications and/or waivers in respect thereof;
(ii) to execute enforce, defend and deliver protect the rights and interests of the holders of the Company Stock following the Closing under Article IX of this Agreement and under the Escrow Agreement, and to take any and all amendments, waivers, ancillary agreements, stock powers, certificates and documents actions that the Shareholder Representative deems believes are necessary or appropriate in connection with under Article IX of this Agreement and under the consummation Escrow Agreement for and on behalf of the transactions contemplated holders of the Company Stock, including, without limitation, asserting, pursuing or defending any claim by this Agreement;or against Parent or the Surviving Corporation, consenting to, compromising or settling any such claim, and conducting negotiations with Parent or Surviving Corporation; and
(iii) to execute make, execute, acknowledge and deliver all amendments such other agreements, notices, requests, instructions and waivers other writings, and, in general, to this Agreement do any and all things and to take any and all actions that the Shareholder Representative deems may consider necessary or appropriate, whether prior to, at or after proper in connection with carrying out the Closing;
(iv) to receive funds for the payment responsibilities of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter under Article IX of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Escrow Agreement.
(b) The Shareholder Representative may will be removed or replaced only upon delivery of written notice entitled to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock engage such counsel, experts and other agents as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative deems necessary or proper in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionconnection with performing its obligations hereunder and under the Escrow Agreement, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it and will be promptly reimbursed by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity holders of the service thereofCompany Stock for all reasonable expenses, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, disbursements and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably advances incurred by the Shareholder Representative in such capacity upon demand, pro rata based upon each such holder’s share of the Company Stock as of the Closing. Each holder of the Company Stock shall indemnify and hold harmless the Shareholder Representative, pro rata based upon such holder’s share of all Company Stock as of the Closing, from any and all Damages that are incurred by the Shareholder Representative as a result of actions taken, or actions not taken, by the Shareholder Representative herein, except to the extent that such Damages arise from the gross negligence or willful misconduct of the Shareholder Representative.
(c) All amounts received by the Shareholder Representative on demand behalf of the holders of the Company Stock (whether under this Agreement or the Escrow Agreement), will be promptly paid by the Shareholder Representative to the holders of the Company Stock, in connection accordance with Section 1.7; provided, however, that the Shareholder Representative will be entitled to set off any amounts payable to the Shareholder Representative under Section 10.13(b) against amounts otherwise payable to holders of the Company Stock pursuant to this Section 10.13(c).
(d) Parent and Surviving Corporation shall have the right to rely upon all actions taken or not taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors this Agreement and the incurring Escrow Agreement, all of legal fees and other costswhich actions or omissions shall be legally binding upon the holders of the Company Stock.
(e) from If at any time the Shareholder Representative Expense Fund. In resigns, dies or becomes incapable of acting, the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each holders of a majority of the Equityholders severally Company Stock as of the Closing shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted choose another holder to be taken by act as the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Geisel Brian R)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption Merger and without any further action on the part of this Agreement and thereby the Merger by Shareholders other than the Company Shareholder Approval, hereby appoints GF Private Equity Groupfrom and after the Effective Time, LLC and the Shareholder Representative shall have irrevocably constituted and appointed (and by its execution of this Agreement act as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), on behalf of the Equityholders Shareholders for purposes of (i) taking action or receiving consideration hereunder notice pursuant to act in Article 9 and the nameEscrow Agreement, place and stead of the Equityholders (ii) taking action or receiving notice in connection with the transactions contemplated by this Merger Consideration Adjustment Amount pursuant to Section 2.6 and the Escrow Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of taking any and all liabilities, losses, damages, claims, costs actions and making any and all decisions required or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted permitted to be taken by the Shareholder Representative under this Agreement or and the Escrow Agreement, and (iv) exercising such rights, power and authority as are incidental hereto (including the right, power and authority to retain attorneys, accountants and other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence advisors to assist it in the performance of its duties under this Agreementhereunder). The Shareholder Representative may consult shall have the ability and power to execute and deliver all instruments, certificates and other documents of every kind incident to the foregoing and all right, power and authority to act on behalf of the Shareholders in connection herewith. Both Parent and the Surviving Corporation shall be entitled to deal exclusively with legal counsel the Shareholder Representative on all matters relating to Section 2.6, Article 9 and the Escrow Agreement. If the then-current Shareholder Representative shall resign its position or be unable to fulfill its responsibilities as agent of its selection in the event Shareholders, then the Shareholders holding, immediately prior to the Closing, a majority of any dispute or question the Common Shares Outstanding shall select a successor shareholder representative. Any such successor shall become the “Shareholder Representative” for purposes of this Agreement and the Escrow Agreement; and no such resignation of the then-current Shareholder Representative shall be effective as to the meaning then-current Shareholder Representative until the new Shareholder Representative shall accept such appointment.
(b) The Shareholder Representative will receive no compensation for services as the Shareholder Representative but shall be entitled to the payment of all of its reasonable and documented out-of-pocket expenses incurred (including the costs, expenses and disbursements incurred in connection with retaining outside counsel) in connection with the performance of its duties hereunder and pursuant to the Escrow Agreement.
(c) Parent shall deliver, or construction cause to be delivered, to a bank designated by the Shareholder Representative, in cash, the sum of any of $150,000 (the “Shareholder Representative Fund Amount”), which shall be available from time to time to the Shareholder Representative solely in connection with the provisions hereof or its duties hereunderof Section 10.1(b). The Shareholder Representative shall maintain the Shareholder Representative Fund Amount in a segregated account.
(d) From time to time after the Effective Time, and it shall incur no liability the Shareholder Representative may distribute to the Equityholders in acting Shareholders, in accordance with the opinion and instructions Section 1.5 of this Agreement, such portion of such counselsum from the Shareholder Representative Fund Amount as the Shareholder Representative reasonably determines will not be needed for the payment of future costs and expenses. Any portion of such sum remaining after the final resolution of all claims asserted against, or asserted by or on behalf of, the Shareholders hereunder or under the Escrow Agreement and the final distribution to the Shareholders of all monies that are or could be distributable to them hereunder or under the Escrow Agreement shall be distributed to the Shareholders in accordance with Section 1.5 of this Agreement. All fees and expenses incurred by the Shareholder Representative in excess of the Shareholder Representative Fund Amount shall be paid from any funds otherwise due to the Shareholders (including from the Escrow Fund to the extent such amount is payable to the Shareholders in accordance with Section 2.1) in proportion to the conversion methodology set forth in Section 1.5 of this Agreement and if no funds are available from the Escrow Fund, then directly from the Shareholders in proportion to their Pro Rata Share.
(e) Any indemnification payments owed to a Shareholder Indemnified Party pursuant to Article 9 will be effected by wire transfer of immediately available funds to an account designated by the Shareholder Representative. All indemnification payments to be received by the Shareholder Indemnified Parties in accordance with Article 9 will be allocated among the Shareholders in proportion to the conversion methodology set forth in Section 1.5 of this Agreement.
(f) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent and the Surviving Corporation may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. Parent and the Surviving Corporation 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 Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
Shareholder Representative. (a) Each In order to efficiently administer the transactions contemplated hereby, including but not limited to the waiver of any condition to the obligations of the EquityholdersTEXONA or its SHAREHOLDERS to consummate the transactions contemplated hereby, by virtue the SHAREHOLDERS hereby designate Earl ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇ their SHAREHOLDER Representative.
(b) The SHAREHOLDERS hereby authorize the SHAREHOLDER Representative (i) to take any and all action necessary in connection with the waiver of any condition to the obligations of the adoption SHAREHOLDERS to consummate the transactions contemplated hereby, including, without limitation, pursuant to this Agreement and the Registration Rights Agreement, (ii) to give and receive all notices given under this Agreement and the Registration Rights Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the SHAREHOLDERS by the terms of this Agreement or the Registration Rights Agreement.
(c) In the event that the SHAREHOLDER Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the persons constituting the Board of Directors of TEXONA immediately prior to the Effective Time shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the SHAREHOLDER Representative for all purposes of this Agreement and thereby the documents delivered pursuant hereto.
(d) All decisions and actions by the SHAREHOLDER Representative shall be binding upon all of the SHAREHOLDERS and no SHAREHOLDER shall have the right to object, dissent, protest or otherwise contest the same.
(e) By his, her or its approval of the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as contemplated pursuant to the true, exclusive terms hereof and/or execution of that certain Subscription and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Release Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the powereach SHAREHOLDER will agree that:
(i) to act all actions, decisions and instructions of the SHAREHOLDER Representative shall be conclusive and binding upon all of the SHAREHOLDERS and no SHAREHOLDER shall have any cause of action against the SHAREHOLDER Representative for any action taken, decision made or instruction given by the Equityholders with regard to matters pertaining to indemnification referred to in SHAREHOLDER Representative under this Agreement, including except for fraud or willful breach of this Agreement by the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other ProceedingsSHAREHOLDER Representative;
(ii) to execute the provisions of this Section 3.4 are independent and deliver all amendmentsseverable, waivers, ancillary agreements, stock powers, certificates are irrevocable and documents coupled with an interest and shall be enforceable notwithstanding any rights or remedies that the Shareholder Representative deems necessary or appropriate any SHAREHOLDER may have in connection with the consummation of the transactions contemplated by this Agreement;
(iii) remedies available at law for any breach of the provisions of this Section 3.4 are inadequate; therefore, TAC, SHAREHOLDER Representative and TEXONA shall be entitled to execute temporary and deliver all amendments and waivers permanent injunctive relief without the necessity of proving damages if either the TAC, TEXONA and/or the Company brings an action to enforce the provisions of this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;Section 3.4; and
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter The provisions of this Agreement as fully Section 3.4 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and completely as the Equityholders could do if personally present; and
(vi) to receive service successors of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parenteach SHAREHOLDER, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth references in this Agreement in to a SHAREHOLDER or the manner SHAREHOLDER shall mean and include the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible successors to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this AgreementSHAREHOLDER's rights hereunder, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative whether pursuant to testamentary disposition, the terms hereof (including the hiring laws of legal counsel descent and distribution or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselotherwise.
Appears in 1 contract
Shareholder Representative. (a) Each The Shareholder Representative shall act as the representative of the EquityholdersModel Shareholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and be authorized to act on behalf of the Equityholders in Model Shareholders and to take any Proceeding involving and all actions required or permitted to be taken by the Shareholder Representative under this Agreement, with respect to do any claims (including the settlement thereof) made by E Com for indemnification or refrain from doing to be held harmless pursuant to this Article 8. The Model Shareholders shall be bound by all such further acts and things, and to execute all such documents as actions taken by the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementcapacity thereof.
(b) The Shareholder Representative may be removed shall at all times act in his or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least her capacity as Shareholder Representative in a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of manner that the Shareholder Representative believes in all matters referred good faith to hereinbe in the best interest of the Model Shareholders. Neither the Shareholder Representative nor any of its agents shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholder Representative may act in reliance upon any instructionconsult with legal counsel, notice, certification, demand, consent, authorization, receipt, power of attorney or independent public accountants and other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed experts selected by it and shall not be liable for any action taken or omitted to be genuinetaken in good faith by it in accordance with the advice of such counsel, and may assume that such person has been properly authorized to do soaccountants or experts. The Shareholder Representative shall act for not have any duty to ascertain or to inquire as to the Equityholders on all performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters set forth not expressly provided for in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible required to the Equityholders for exercise any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law discretion or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. take any action.
(c) Each of the Equityholders agrees that the Model Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse the Shareholder Representatives Representative from and against such EquityholderModel Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses Losses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken taken, or omitted to be taken taken, by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction Losses arising out of or resulting from the Shareholder Representative’s gross negligence, bad faith or willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselmisconduct.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approvaldoes hereby make, hereby appoints GF Private Equity Group, LLC constitute and shall have irrevocably constituted and appointed (and by appoint the Shareholder Representative as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive true and lawful agent and attorney-in-fact (the “Shareholder Representative”)with full power of substitution, of the Equityholders receiving consideration hereunder to act for and in the its name, place stead and stead of the Equityholders in connection behalf, to: prepare, make, sign, initial, acknowledge and deliver from time to time any and all documents, certificates and instruments, including, without limitation, amendments to this Agreement and any other agreements ancillary or related to this Agreement (collectively with the transactions contemplated by this Agreement, in accordance with the terms “Basic Documents”) and provisions of this Agreementother agreements, consents, amendments, certificates, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated in the Basic Documents, and generally to perform all acts and to do all things necessary or appropriate in discharge of the power hereby conferred, including the making of affidavits and the acknowledging of documents, as if fully done by this Agreement;
(iii) the undersigned, and the Shareholder Representative hereby is further authorized and empowered in the discharge of the power hereby conferred to sign any documents by means of either a manual, imprinted or other facsimile signature or by completing a printed form to which an imprinted or other facsimile signature is then affixed; to execute and deliver all amendments such other instruments, certificates and waivers to this Agreement that documents, make such filings, and take such other actions as are in the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems Representative’s judgment necessary or appropriate to consummate the transactions contemplated in its sole discretion relating the Basic Documents; and to the subject matter of this Agreement otherwise possess such other powers as fully and completely as the Equityholders could do if personally present; and
(vi) are reasonably incidental to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to hereinsuch powers. The Shareholder Representative may act (which term as used in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, this sentence and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth elsewhere in this Agreement shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents): (a) shall have no duties or responsibilities except those required to consummation of the transactions contemplated in the manner the Shareholder Representative believes to Basic Documents, and shall not by reason of any Basic Document be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative a trustee for any Company Shareholder; (b) shall not be responsible to the Equityholders Company Shareholders for any Damages recitals, statements, representations or warranties contained in any Basic Document, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or any other Basic Document, or for the Equityholders may suffer value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Basic Document or any other document referred to or provided for in any Basic Document or for any failure by any Company Shareholder, the performance Company, Parent or any other person to perform any of its duties obligations under this Agreement, other than Damage arising from willful violation of the law any Basic Document; (c) shall not be required to initiate or gross negligence in the performance of its duties conduct any litigation or collection proceedings under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative any Basic Document; and (d) shall not be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable responsible for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative it under this Agreement any Basic Document or the Escrow Agreementunder any other document or instrument referred to or provided for in any Basic Document or in connection with any Basic Document, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or except for its own gross negligence in the performance of its duties under this Agreementor willful misconduct. The Shareholder Representative may consult with legal counsel of its selection employ agents and attorneys in fact and shall not be responsible for the event negligence or misconduct of any dispute such agents or question attorneys in fact selected by it in good faith. The Shareholder Representative may deem and treat the person named as holder on any certificate representing Company Shares as the record and beneficial holder of such Company Shares for all purposes of the Basic Documents unless and until a notice of the assignment or transfer of such Company Shares shall have been filed with the Shareholder Representative. With respect to its rights and obligations as a Company Shareholder under this Agreement, in its capacity as a Company Shareholder under the meaning Basic Documents, and with respect to its rights, obligations and opportunities as a director, officer, employee or construction other agent of the Company, any Subsidiary, Parent or any subsidiary of Parent, Shareholder Representative shall have the same rights, privileges and powers under the Basic Documents as any other Company Shareholder and shall have the same rights, privileges and powers under any other agreement as any person not a Company Shareholder and Shareholder Representative may exercise the same as though it were not acting as the Shareholder Representative, and the term “Company Shareholder” shall, unless the context otherwise indicates, include the Shareholder Representative in its individual capacity. Without limitation on the foregoing, Shareholder Representative (and any successor) and its affiliates may (without having to account for the same to any Company Shareholder) engage in any kind of business with the Company, any Subsidiary, Parent, any subsidiary or affiliate of Parent (and any of their affiliates or associates) as if it were not acting as a Company or Subsidiary director, officer or manager or the provisions hereof or its duties hereunderShareholder Representative, and it shall incur no liability Shareholder Representative and its affiliates may accept fees and other consideration from the Company, any Subsidiary, Parent, any subsidiary or affiliate of Parent (and any of their affiliates or associates) for services in connection with this Agreement or otherwise without having to account for the Equityholders in acting same to any Company Shareholder. Each Company Shareholder agrees to indemnify the Shareholder Representative and its affiliates, directors, officers, employees, attorneys and agents ratably in accordance with their respective holdings of Company Shares, for any and all losses, liabilities, damages or expenses incurred by any of them in connection with or by reason of any actual or threatened investigation, litigation or other proceedings (including any such investigation, litigation or other proceedings between the opinion Shareholder Representative and instructions any Company Shareholder) relating to the sale of Company Shares under, and the transactions contemplated by, the Basic Documents, including the reasonable fees and disbursements of counsel incurred in connection with any such counselinvestigation, litigation or other proceedings.
Appears in 1 contract
Sources: Acquisition Agreement (VRDT Corp)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption approval of the Merger and this Agreement and thereby the Merger by the Company Requisite Shareholder ApprovalVote, hereby appoints GF Private Equity Group, LLC and each of the Shareholders shall be deemed to have irrevocably constituted and appointed (and by agreed to appoint ▇▇▇▇ ▇. ▇▇▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementShareholders to give and receive notices and communications, to do authorize payment to any Indemnified Party from the Escrow Fund and directly against the Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or refrain from doing all by any such further acts Shareholder against any Indemnified Party or any dispute between any Indemnified Party and thingsany such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless (i) during the Escrow Period (and any extension thereof) holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent and (ii) following the Escrow Period (and any extension thereof), each of the Principal Shareholders agrees to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive any compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of Shareholders (including the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementPrincipal Shareholders).
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholder Representative (“Shareholder Representative Expenses”). A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to and shall be final, binding and conclusive upon the Effective Time. Parent, Shareholders; and the Surviving Corporation Escrow Agent and any other Person Parent may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon Escrow Agent and Parent are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
Shareholder Representative. (a) Each Shareholder hereby irrevocably authorizes, constitutes and appoints the Person identified in Exhibit 12 attached hereto as such “Shareholder Representative” as such Shareholder’s representative (“Shareholder Representative”) and such Shareholder’s true and lawful attorney in fact, to act on such Shareholder’s behalf in the absolute discretion of the EquityholdersShareholder Representative with respect to all matters relating to this Agreement, by virtue including execution and delivery of the adoption any amendment, supplement, or modification of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC any other Transaction Document and shall have irrevocably constituted and appointed (and by its execution any waiver of any claim or right arising out of this Agreement as Shareholder Representativeand giving and receiving all notices pursuant to this Agreement; and in general, GF Private Equity Groupto do all things and to perform all acts, LLC hereby accepts its appointment) as the trueincluding executing and delivering all agreements, exclusive certificates, receipts, instructions, and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions other instruments contemplated by this Agreement, in accordance with or deemed advisable to effectuate the terms and provisions of this AgreementSection 5.09 (Shareholder Representative), including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to act on behalf of the Equityholders in claims for indemnification made by Buyer;
(iii) litigate, arbitrate, resolve, settle or compromise any Proceeding involving this Agreement, to do claim for indemnification or refrain from doing Earn Out Payments;
(iv) execute and deliver all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with desirable to carry out the transactions contemplated by intent of this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do make all elections or refrain from doing decisions contemplated by this Agreement and any further act or deed on behalf of the Equityholders that the Shareholder Representative deems Transaction Document; and,
(vi) take all actions necessary or appropriate in its sole discretion the good faith judgment of Shareholder Representative for the accomplishment of the foregoing
(b) Buyer shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from Shareholder Representative shall constitute notice to or from each of the Shareholders. Any decision or action by Shareholder Representative hereunder, including any agreement between Shareholder Representative and Buyer relating to the subject matter defense, payment or settlement of any claims for indemnification hereunder or the amount of any Earn Out Payments, shall constitute a decision or action of all Shareholders and shall be final, binding and conclusive upon each such Person. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Agreement as fully Section, including the power of attorney granted hereby, are independent and completely as the Equityholders could do if personally present; and
(vi) to receive service severable, are irrevocable and coupled with an interest and shall not be terminated by any act of process in connection with any claims under this AgreementShareholder, either individually or collectively, or by operation of Law, whether by death or other event.
(bc) The Shareholder Representative may resign at any time, and may be removed for any reason or replaced only upon delivery of written notice to the Surviving Corporation no reason by the Company Shareholders holding at least vote or written consent of a majority in interest of outstanding shares of the Shareholders according to each Shareholder’s percentage ownership in the Company Common Stock as of immediately prior to the Effective TimeFirst Closing (the “Majority Holders”); provided, however, in no event shall Shareholder Representative resign or be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the resignation or removal of Shareholder Representative. Parent, In the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction event of the death, incapacity, resignation or removal of Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instructionRepresentative, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the new Shareholder Representative shall be appointed by the vote or written consent of the Majority Holders. The Shareholders acknowledge and agree that, if a Shareholder is available that is also an employee of the Company, any Shareholder Representative appointed hereunder must at the time of such appointment be an employee of the Company and shall be deemed to have immediately resigned such appointment upon the effective date of any cessation of employment with the Company. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Buyer; provided, that until such notice is received, Buyer shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs rely on the decisions and expenses reasonably incurred by actions of the prior Shareholder Representative on demand as described in connection with actions taken by the Shareholder Representative pursuant to the terms hereof subsection (including the hiring of legal counsel or advisors and the incurring of legal fees and other costsb) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselabove.
Appears in 1 contract
Shareholder Representative. (ai) Each of the Equityholders, by virtue of the adoption For purposes of this Agreement and thereby the Merger by Agreement, the Company Shareholder ApprovalShareholders, hereby appoints GF Private Equity Groupwithout any further action on the part of any such Company Shareholder, LLC and shall be deemed to have irrevocably constituted and appointed consented to the appointment of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by its execution of this Agreement as “Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment”) as the true, exclusive and lawful agent and the attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all each such further acts and thingsShareholder, and to execute all such documents as the taking by the Shareholder Representative shall deem necessary of any and all actions and the making of any decisions required or appropriate in connection with the transactions contemplated permitted to be taken by him under this Agreement, including the power:
exercise of the power (i) to act give and receive notices and communications, (ii) to authorize delivery to Parent of the Escrowed Consideration in satisfaction of claims by Parent, to object to such delivery, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, (iii) authorize delivery to Parent and Merger Sub of the Escrow Amount, or any portion thereof, in satisfaction of Indemnification Claims, and (iv) to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the Equityholders accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Escrowed Consideration from time to time. The Shareholder Representative shall serve as the Indemnification Representative as defined in the Escrow Agreement. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Company Shareholders.
(ii) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative other than for acts or omissions of willful misconduct or gross negligence. The Company Shareholders shall severally indemnify the Shareholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with regard to matters pertaining to indemnification referred to in this Agreementthe acceptance or administration of his duties hereunder, including the power to compromise cost of any indemnity claim accounting firm or legal counsel retained by the Representative on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;Shareholders.
(iiiii) The Shareholder Representative shall have reasonable access to execute information about the Company and/or the Surviving Company reasonable assistance of the Company’s and/or Surviving Company’s officers and deliver all amendmentsemployees for purposes of performing his duties and exercising his rights hereunder, waivers, ancillary agreements, stock powers, certificates and documents provided that the Shareholder Representative deems necessary shall treat confidentially and not disclose any nonpublic information from or appropriate in connection with about the consummation of Company and/or the transactions contemplated by this Agreement;
Surviving Company to any Person (iii) except on a need to execute and deliver all amendments and waivers know basis to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;individuals who agree to treat such information confidentially).
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentA decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in shall constitute a decision of all matters referred Company Shareholders entitled to herein. The Shareholder Representative the Escrowed Consideration, and shall be final, binding and conclusive upon each such Company Shareholder, and the Escrow Agent and Parent may act in reliance rely upon any instructiondecision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of each and every such Company Shareholder. To the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees extent that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or either the Escrow AgreementAgent or Parent acts in accordance with a decision, other than such liabilitiesact, losses, damages, claims, costs consent or expenses determined by a non-appealabe order or judgment instruction of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation , Escrow Agent and Parent are hereby relieved from any liability with respect to such act, to any Person, including the Company Shareholders.
(v) The Company Shareholders shall retain full voting power over all shares of Parent Common Stock held as Escrowed Consideration. Any cash dividends, dividends payable in securities or other distributions of any kind (but excluding any shares of Parent Common Stock received upon a stock split or stock dividend), shall be promptly distributed by the Escrow Agent to the beneficial holder of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as Escrow Shares to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting which such distribution relates in accordance with the opinion Distribution Schedule. Any shares of Parent Common Stock received by the Escrow Agent upon a stock split made in respect of any securities in the Escrowed Consideration shall be added to the Escrowed Consideration and instructions become a part thereof. The provisions of such counselthis Section shall be adjusted to appropriately reflect any stock split or reverse stock split.
Appears in 1 contract
Shareholder Representative. (a) Each of Pursuant to the EquityholdersShareholder Representative agreement, by virtue of in the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement form attached hereto as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointmentExhibit 9.1(a) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder RepresentativeRepresentative Agreement”), the Shareholder Representative shall be named as the agent and representative of all of the Equityholders Company Shareholders, including without limitation, for purposes of receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by on their behalf all notices under this Agreement, in accordance with the terms Escrow Agreement and provisions of the Paying Agent Agreement, issuing on their behalf such notices under this Agreement, the Escrow Agreement and to act on behalf of the Equityholders in any Proceeding involving this Paying Agent Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents in each case as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate determine in its sole discretion relating to the subject matter of this Agreement as fully issue, and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims performing such other administrative and other functions under this Agreement, the Escrow Agreement and the Paying Agent Agreement, in each case as may become necessary or desirable.
(b) The Shareholder Representative may be removed or replaced only upon delivery shall have full power and authority to act for and on behalf of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority and their respective heirs, successors and assigns in regard to their rights and obligations under this Agreement, the Escrow Agreement and the Paying Agent Agreement. Without limiting the generality of outstanding shares the foregoing, the Shareholder Representative is authorized on behalf of the Company Common Stock Shareholders to: (i) administer the Post-Closing NWC Adjustment process under Section 2.11; (ii) resolve all claims for indemnification under Article VIII of this Agreement, the Escrow Agreement and the Paying Agent Agreement; (iii) retain counsel of its choosing, experts and other professionals as of immediately prior may be necessary or desirable to assist in any such matters; and (iv) give such notices to the Effective TimeEscrow Agent under the Escrow Agreement or to the Paying Agent under the Paying Agent Agreement, in each case as the Shareholder Representative, in its sole and absolute discretion, may determine to be necessary or appropriate. ParentThe Shareholder Representative shall have no right to act as agent for service of process for any one of the Company Shareholders, except that any notice delivered to the Surviving Corporation Shareholder Representative from the Purchaser or the Escrow Agent with respect to the Escrow Agreement, or from the Paying Agent with respect to Paying Agent Agreement, shall be deemed notice to all Company Shareholders with respect thereto and any notice delivered to the Shareholder Representative with respect to any claim under Article VIII and any other Person may conclusively matter under this Agreement after the Closing shall be deemed notice to all Company Shareholders with respect thereto.
(c) The Purchaser shall be named as a third party beneficiary in the Shareholder Representative Agreement. Neither the removal of a then acting Shareholder Representative nor such appointment of a successor Shareholder Representative shall be effective until notice of such act has been provided to the Purchaser and absolutely relythe delivery to the Purchaser and Escrow Agent of executed counterparts of a writing signed by sufficient number of Company Shareholders necessary to authorize such removal and appointment, together with an acknowledgment signed by the successor Shareholder Representative appointed in such writing that it, he or she accepts the responsibility of successor Shareholder Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Shareholder Representative, with a copy of such acknowledgement being promptly provided to the Purchaser. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative” as used herein, in the Escrow Agreement and the Paying Agent Agreement shall be deemed to include any interim or successor Shareholder Representative.
(d) The Purchaser will at all times without inquiry, upon any actionfurther act or inquiry have the right to rely on any act, decision, consent or instruction of of, or instrument or other writing executed by, the Shareholder Representative as the final and binding act of all of the Company Shareholders, and by approval of the Merger the Company Shareholders waive any claim arising out of, or right to object to, any action so taken by the Purchaser or any of its Representatives or Affiliates. It is understood and agreed by each of the parties hereto that nothing in all matters referred this Agreement shall be construed or deemed to expand or create any right on the part of a Company Shareholder, with respect to the Purchaser or any of its Affiliates, or any obligation on the part of the Purchaser, or any of its Affiliates, to any Company Shareholder not otherwise expressly set forth in clear and unambiguous terms in this Agreement (to the extent that there may be any such provisions herein. The ).
(e) Notwithstanding the foregoing provisions of this Section 9.1, the Shareholder Representative may shall not have any power or authority to act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney for or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness on behalf of any fact stated thereinCompany Shareholder or its heirs, the propriety successors or validity of the service thereofassigns, or the jurisdiction of the court issuing with respect to any judgment or order. The claim that a Company Shareholder, in its capacity as such, committed fraud (each, an “Individual Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soClaim”). The Shareholder Representative shall have no right to act as agent for the Equityholders on all service of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders process for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Company Shareholder Representative shall be entitled with respect to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselan Individual Stockholder Claim.
Appears in 1 contract
Sources: Merger Agreement (On Assignment Inc)
Shareholder Representative. (a) Each Except as provided in Section 8.3(b), each Shareholder by executing this Agreement hereby irrevocably constitutes and appoints ▇▇▇ ▇▇▇▇▇ as the Shareholder Representative, with full power and authority to act in the name of the Equityholdersand for and on behalf of such Shareholder with respect to all matters arising in connection with, by virtue of the adoption of or related to, this Agreement and thereby the Merger by Escrow Agreement to which such Shareholder is a party and the Company transactions contemplated hereby and thereby. Except as provided in Section 8.3(b), the Shareholder Approval, Representative is hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (i) the agent and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive true and lawful agent and attorney-in-fact (the “Shareholder Representative”)of each Shareholder, with full power of the Equityholders receiving consideration hereunder substitution, and with full capacity and authority in its sole discretion, to act in the name, place name of and stead for and on behalf of the Equityholders each Shareholder in connection with the transactions all matters arising out of, resulting from, contemplated by or related or incident to this Agreement and the Escrow Agreement, if applicable, and (ii) the agent for service of process for each Shareholder, and the Shareholders hereby irrevocably consent to the service of any and all process in accordance any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Shareholder Representative. Without limiting the generality of the foregoing, the power of the Shareholder Representative shall include the power to represent each Shareholder with the terms and provisions respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) waive any and to act on behalf all conditions of the Equityholders in any Proceeding involving this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith in any respect, (iii) bring, assert, defend, negotiate or settle any claims or actions pursuant to the terms hereof, (iv) retain legal counsel or accountants and be reimbursed by the Shareholders for all fees, expenses and other charges of such legal counsel or accountants, (v) receive notices or other communications, (vi) deliver any notices, certificates or other documents required and (vii) take all such other action and to do or refrain from doing all such further acts and things, and to execute all such documents other things as the Shareholder Representative shall deem necessary deems necessary, appropriate, desirable or appropriate in connection advisable with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers respect to this Agreement or the Escrow Agreement; provided, however, that such authority shall not include the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) authority to receive funds for any payment to be made to the payment of expenses Shareholders pursuant to this Agreement or the Escrow Agreement, which the parties acknowledge and agree shall be made on a pro rata basis based on the relative ownership by the Shareholders of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Corporation’s Stock as of immediately prior to the Effective TimeClosing as set forth on Schedule 3.2. Parent, the Surviving Corporation ▇▇▇▇ and any other Person may conclusively ▇▇▇▇ Indemnitee shall have the absolute right and absolutely rely, without inquiry, authority to rely upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action acts taken or omitted to be taken by the Shareholder Representative under this Agreement or on behalf of the Escrow AgreementShareholders, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment and ▇▇▇▇ and any ▇▇▇▇ Indemnitee shall have no duty to inquire as to the acts and omissions of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Each Shareholder Representative may consult with legal counsel of its selection in the event of hereby acknowledges and agrees that (i) all deliveries by ▇▇▇▇ (other than any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting payment made in accordance with the opinion and instructions proviso at the end of the immediately preceding sentence) shall be deemed deliveries to the Shareholders, (ii) ▇▇▇▇ shall not have any liability with respect to any aspect of the distribution or communication of such counseldeliveries between the Shareholder Representative and any Shareholder and (iii) any disclosure made to the Shareholder Representative by or on behalf of ▇▇▇▇ shall be deemed to be a disclosure made to each Shareholder. In the event such Shareholder Representative refuses to, or is no longer capable of, serving as the Shareholder Representative hereunder, a majority of the Shareholders shall promptly appoint a successor Shareholder Representative who shall be reasonably acceptable to ▇▇▇▇ and shall thereafter be a successor Shareholder Representative hereunder, and the Shareholder Representative shall serve until such successor is duly appointed and qualified to act hereunder.
(b) Notwithstanding Section 8.3(a): (i) with the prior written consent of ▇▇▇▇, (A) any Shareholder may take any action with respect to any matter specified in such written consent and arising in connection with, or related to, this Agreement and the Escrow Agreement to which such Shareholder is a party and the transactions contemplated hereby and thereby and (B) the appointment of the Shareholder Representative as agent and attorney-in-fact for the purposes set forth in Section 8.3(a) shall be suspended to the extent (and only to the extent) and with respect to those matters (and only those matters) specified in such written consent; and (ii) the ▇▇▇▇ Indemnitees may at any time with respect to any matter direct any instruction or request directly to any Shareholder in its capacity as such, and such instruction or request shall constitute the written consent of ▇▇▇▇ with respect to such matter for purposes of Section 8.3(b)(i). Any written consent delivered pursuant to this Section 8.3(b) may be withdrawn at any time, and upon any such withdrawal the provisions of Section 8.3(a) shall apply fully as though no written consent had been delivered (subject to the ▇▇▇▇’▇ continued right to deliver a written consent pursuant to this Section 8.3(b), including with respect to any matter that was the subject of a previous written consent).
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, Shareholders hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its his execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby accepts its his appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)fact, of the Equityholders receiving consideration hereunder Company Shareholders to act in the name, place and stead of the Equityholders Company Shareholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders Company Shareholders in any Proceeding or Dispute involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of the Company Shareholders as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders Company Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation arbitration or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreementsAncillary Agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders Company Shareholders and apply such funds in payment for such expenses;; and
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders Company Shareholders that the Shareholder Representative deems necessary or appropriate in its his sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders Company Shareholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation Parent by each of the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective TimeShareholders. Parent, the Surviving Corporation Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of written instrument delivered by the Shareholder Representative in all matters referred to herein. The No bond shall be required of the Shareholder Representative, and the Shareholder Representative may act in reliance upon any instructionshall not receive compensation for its, noticehis or her services; provided, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine that the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it shall be entitled to be genuine, and may assume that such person has been properly authorized reimbursements of expenses pursuant to do soSection 12.09(d). The Shareholder Representative shall act for the Equityholders Company Shareholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests interest of the Equityholders Company Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible or liable to the Equityholders Company Shareholders for any Damages the Equityholders Company Shareholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence misconduct in the performance of its duties under this Agreement as determined by a non-appealable order his, her or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders Company Shareholders with respect to any action taken, omitted to be taken or suffered by them in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him, her or it to be genuinely and duly authorized, nor for any other action or inaction except its own willful misconduct. The Shareholder Representative may, in all questions arising under this Agreement, or any other agreement, rely on the advice of counsel and the Shareholder Representative shall not be liable to the Company Shareholders for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice. The Shareholder Representative is authorized by the Company Shareholders to incur expenses on behalf of the Company Shareholders in acting hereunder. The parties hereto understand and agree that the Shareholder Representative is acting solely on behalf of and as agent for the Company Shareholders and not in accordance his or her personal capacity.
(c) Each Company Shareholder agrees to indemnify the Shareholder Representative for its respective Pro Rata Share of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative) or disbursements of any kind or nature whatsoever which may at any time be imposed on or incurred by the Shareholder Representative in any way relating to or arising out of or in connection with the opinion acceptance or administration of the Shareholder Representative’s duties hereunder or this Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Company Shareholder shall be liable for any of the foregoing to the extent they arise from the Shareholder Representative’s willful misconduct.
(d) All reasonable and instructions documented out-of-pocket expenses, including legal fees and expenses and fees, in each such case, incurred by the Shareholder Representative in fulfilling the duties of such counselthe Shareholder Representative as agent for the Company Shareholders hereunder shall be paid or reimbursed by the Company Shareholders based on their Pro Rata Share. Without limiting the generality of the foregoing, the Shareholder Representative is authorized to deduct from any payment due to the Company Shareholders pursuant to this Agreement the amount of any reimbursement.
Appears in 1 contract
Sources: Merger Agreement (Universal Truckload Services, Inc.)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption their approval of this Agreement and thereby Agreement, the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall shareholders of Target Corporation will be deemed to have irrevocably constituted and appointed (and by its execution appointed, effective as of this Agreement as the Closing, the Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) Representative as the true, exclusive and lawful agent representative and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and thingsshareholders, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred taking by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs actions and the making of any decisions required or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted permitted to be taken by the Shareholder Representative her under this Agreement or the Escrow Agreement, including, without limitation, the exercise of the power to (i) execute the Escrow Agreement, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to any indemnification claim, (iii) resolve any indemnification claim, including claims relating to the ▇▇▇▇▇▇ Dispute and (iv) take all actions necessary in the judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other than such liabilitiesterms, lossesconditions and limitations of this Agreement and the Escrow Agreement. Accordingly, damagesthe Shareholder Representative has unlimited authority and power to act on behalf of each shareholder of Target Corporation with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all indemnification claims, costs rights or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction obligations arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under and taken pursuant to this Agreement. The shareholders of Target Corporation will be bound by all actions taken by the Shareholder Representative in connection with this Agreement, and Acquiring Corporation and Newco shall be entitled to rely on any action or decision of the Shareholder Representative. The Shareholder Representative will incur no liability with respect to any action taken or suffered by her in reliance upon any notice, direction, instruction, consent, statement or other document believed by her to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except her own willful misconduct or bad faith. In all questions arising under this Agreement or the Escrow Agreement, the Shareholder Representative may consult with legal counsel rely on the advice of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereundercounsel, and it shall incur no liability the Shareholder Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Equityholders in acting in accordance with Shareholder Representative based on such advice. Except as expressly provided herein, the opinion and instructions of such counselShareholder Representative will not be required to take any action involving any expense, other than as required by this Agreement or the Escrow Agreement.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersShareholder Representative shall, by virtue of the adoption Closing, be the only Person authorized and empowered to act for and on behalf of the Shareholders, and Parent shall be entitled to transact with only the Shareholder Representative, in connection with the indemnity provisions of this Article VIII and with respect to all matters relating to the Shareholders under this Agreement and the Escrow Agreement, including the payment of the Per Share Closing Consideration on behalf of Barrier, the determination of the Price Adjustment under Section 2.7, the Tax provisions of Section 5.10, the notice provisions of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC Escrow Agreement and shall have irrevocably constituted and appointed (and by its execution of this Agreement such other matters as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem are reasonably necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) Agreement or the Escrow Agreement and the agreements and documents contemplated hereby or thereby including, without limitation, to execute act as the representative of the Shareholders to review and deliver authorize all amendments setoffs, claims and waivers to other payments authorized or directed by this Agreement that or the Shareholder Representative deems necessary Escrow Agreement and dispute or appropriatequestion the accuracy thereof, whether prior to, at to compromise on their behalf with Parent any claims asserted hereunder or after the Closing;
(iv) thereunder and to receive funds for the payment of expenses of the Equityholders authorize payments to be made with respect thereto and apply to take such funds further actions as are authorized in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as or the Equityholders could do if personally present; and
(vi) to receive service Escrow Agreement. Upon the filing of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery a certificate of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction dissolution of the Shareholder Representative in all matters referred to herein. The with the Secretary of State of the State of California or upon the resignation of the Shareholder Representative may act (or upon the dissolution, resignation, death or incapacity of a successor Shareholder Representative), a successor Shareholder Representative shall be elected within thirty (30) days by the vote of holders of a majority of Barrier Shares; provided that if no successor Shareholder Representative shall be elected in reliance upon any instructionsuch 30-day period, notice▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall become the successor Shareholder Representative. If the Shareholder Representative applies for or consents to the appointment of a receiver, certificationfiles a voluntary petition for bankruptcy, demandmakes a general assignment for the benefit of creditors, consentor makes a written admission of inability to pay debts when they become due, authorizationor an order, receipt, power of attorney judgment or other writing delivered to it decree is entered by any other person other than itself without being required to determine court of competent jurisdiction (or on the authenticity application of a creditor) adjudicating the Shareholder Representative bankrupt or validity thereof insolvent or the correctness approving a petition of any fact stated therein, the propriety or validity reorganization of the service thereofShareholder Representative or appointing a receiver, trustee or the jurisdiction liquidator of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineor all or a substantial part of its assets, and may assume that such person has been properly authorized to do so▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall become the successor Shareholder Representative. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable to the Equityholders for Shareholders or Parent or any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled Person with respect to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under or in connection with this Agreement unless such action or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs omission results from or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising arises out of fraud, gross negligence, willful misconduct or resulting from bad faith on the part of the Shareholder Representative’s willful violation . Parent shall be entitled to rely on such authorization and treat such Shareholder Representative as the duly authorized agent of the law or gross negligence in the performance of its duties under this AgreementShareholders. The Shareholders shall be deemed to confirm such authority if Barrier shall obtain the Requisite Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselApproval.
Appears in 1 contract
Shareholder Representative. (a) Each In order to efficiently administer the determination of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by any Indemnity Claims under this Agreement, the Shareholder Representative shall be the sole and exclusive representative of the Socati Converted Shareholders in accordance with respect of their indemnity rights and obligations under this Agreement. The Parties shall be entitled to rely on the terms Shareholder Representative as having the authority to make all decisions and provisions take all actions relating to the respective rights, obligations and remedies of the Socati Converted Shareholders under this Agreement, and deal exclusively with the Shareholder Representative in respect of all such matters, including to act deliver or receive any Notice of Claim or other notices or instructions in respect of an Indemnity Claim, to investigate, negotiate, settle, pursue and defend any Indemnity Claims, to give releases and discharges in respect of any Indemnity Claim on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, Socati Converted Shareholders and to execute take all such documents as the Shareholder Representative shall deem other actions that are either (i) necessary or appropriate in connection with the transactions contemplated by this Agreement, including judgement of the power:
(i) to act Shareholder Representative for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf accomplishment of the Company Shareholders and to transact matters of litigation foregoing, or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated specifically mandated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementagreement.
(b) All decisions, instructions and actions to be taken by the Socati Converted Shareholders, or any one of them, under this Agreement shall be deemed to be taken by such Socati Converted Shareholders if such decisions, instructions or actions are taken by the Shareholder Representative, and such decisions, consents, instructions or actions shall be final, binding and conclusive upon such Socati Converted Shareholders. Yooma and Subco may rely upon any such decision, consent, instruction or action by the Shareholder Representative as being the decision, consent, instruction or action of the Socati Converted Shareholders.
(c) The Shareholder Representative may be removed will incur no liability of any kind with respect to any action or replaced only upon delivery of written notice to the Surviving Corporation omission by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative with respect to its services under this Agreement and any Ancillary Agreements, except in all matters referred to herein. The the event of liability resulting from the Shareholder Representative may act in reliance upon any instructionRepresentative’s gross negligence, noticebad faith, certification, demand, consent, authorization, receipt, power of attorney fraud or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do sowilful misconduct. The Shareholder Representative shall act not be liable for any action or omission pursuant to the Equityholders on all advice of the matters set forth in this Agreement in the manner its legal counsel. The Socati Converted Shareholders shall jointly and severally indemnify, defend and hold harmless the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all claims, liabilities, losses, damages, claimscosts, costs or penalties, fines, forfeitures and expenses suffered or incurred by the Shareholder Representative (including reasonable expenses relating to legal counsel, experts and their staff) arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from in connection with the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties role under this Agreement. Agreement (the “Representative Losses”).
(d) The Shareholder Representative may consult with legal counsel shall be entitled recover any Representative Losses out of its selection in the event of any dispute or question as Indemnity Shares that would otherwise be released to the meaning or construction of any Socati Converted Shareholders at the end of the provisions hereof or its duties hereunderIndemnity Period, and it Yooma and the Shareholder Representative shall incur no liability to instruct the Equityholders in acting in accordance with the opinion and instructions of such counselEscrow Agent accordingly.
Appears in 1 contract
Sources: Merger Agreement
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall Seller will be deemed to have irrevocably constituted and appointed appointed, effective as of the Closing, Dav▇▇ ▇. ▇▇▇▇▇ (and by its execution of this Agreement ▇ogether with his permitted successors, the "SHAREHOLDER REPRESENTATIVE"), as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive his true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders enter into any agreement in connection with the transactions contemplated by this Agreement and any transactions contemplated by the Escrow Agreement, to exercise all or any of the powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (other than the Buyer Shares issuable in accordance with Section 2.1), to give and receive notices on his behalf and to be his exclusive representative with respect to any matter, suit, claim, action or Proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the terms defense, settlement or compromise of any claim, action or proceeding for which Buyer or, following the Closing, -------------------------------------------------------------------------------- STOCK PURCHASE AGREEMENT - EXECUTION COPY PAGE 8 CCS TECHNOLOGY, INC. Company may be entitled to indemnification and provisions of this Agreementthe Shareholder Representative agrees to act as, and to act on behalf undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts attorney is coupled with an interest and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementis irrevocable.
(b) The Shareholder Representative shall not be liable to anyone for any action taken or not taken by him in good faith or for any mistake of fact or law for anything that he may be removed do or replaced only upon delivery refrain from doing in connection with his obligations under this Agreement (i) with the consent of written notice to stockholders who, as of the Surviving Corporation by the Company Shareholders holding at least date of this Agreement, owned a majority in number of the outstanding shares of Company Common Stock as or (ii) in the absence of immediately prior his own gross negligence or willful misconduct. Any action taken or not taken pursuant to the Effective Timeadvice of counsel shall be conclusive evidence of such good faith. ParentThe Sellers shall, jointly and severally, indemnify and hold the Surviving Corporation Shareholder Representative, and each successor thereof, harmless from any other Person may conclusively and absolutely relyall liability and expenses (including, without inquirylimitation, upon counsel fees) that may arise out of any actionaction taken or omitted by him as Shareholder Representative in accordance with this Agreement, decisionas the same may be amended, consent modified or instruction supplemented, except such liability and expense as may result from the gross negligence or willful misconduct of the Shareholder Representative in all matters referred to herein. Representative.
(c) The Shareholder Representative may act rely and shall be protected in reliance upon relying or refraining from acting on any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature instrument reasonably believed by it to be genuine, genuine and may assume that such person has to have been properly authorized to do sosigned or presented by the proper party or parties. The Shareholder Representative shall act not be liable for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreementother parties' forgeries, but the fraud or false presentations.
(d) The Shareholder Representative shall not be responsible have reasonable access to information about the Equityholders for any Damages Company and the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation reasonable assistance of the law or gross negligence in the performance Company's officers and employees for purposes of its performing his duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees and exercising his rights hereunder, provided that the Shareholder Representative shall be entitled treat confidentially and not disclose any nonpublic information from or about the Company to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(e) If the Shareholder Representative on demand shall be unable or unwilling to serve in connection with actions taken such capacity, his successor shall be named by those persons holding a majority of the shares of Company Common Stock outstanding immediately prior to the Closing, and such successor(s) shall serve and exercise the powers of the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The Selling Shareholders, on behalf of the Equityholdersitself and any successors and assigns, by virtue of the adoption execution and delivery of this Agreement and thereby the Merger by the Company Shareholder ApprovalAgreement, hereby irrevocably appoints GF Private Equity GroupL▇▇ ▇▇▇▇ Wei, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement in the capacity as the Shareholder Representative, GF Private Equity Groupas each such Person’s agent, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)and representative, with full power of the Equityholders receiving consideration hereunder substitution to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreementsuch Person, in accordance with the terms and provisions of this Agreement, and to act on behalf of such Person from and after the Equityholders Closing in connection with: (i) terminating, amending or waiving on behalf of such Person any Proceeding involving provision of this Agreement or any Ancillary Documents to which the Shareholder Representative is a party or otherwise has rights in such capacity (together with this Agreement, the “Shareholder Representative Documents”); (ii) signing on behalf of such Person any releases or other documents with respect to do any dispute or refrain from doing all such further acts remedy arising under any Shareholder Representative Documents; (iii) employing and thingsobtaining the advice of legal counsel, accountants and to execute all such documents other professional advisors as the Shareholder Representative, in its reasonable discretion, deems necessary or advisable in the performance of its duties as the Shareholder Representative shall deem necessary or appropriate in connection with and to rely on their advice and counsel; (iv) incurring and paying reasonable out-of-pocket costs and expenses, including fees of brokers, attorneys and accountants incurred pursuant to the transactions contemplated by this Agreementhereby, and any other reasonable out-of-pocket fees and expenses allocable or in any way relating to such transaction or any indemnification claim; and (v) otherwise enforcing the rights and obligations of any such Persons under any Shareholder Representative Documents, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim giving and receiving all notices and communications hereunder or thereunder on behalf of such Person; provided, that the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents Parties acknowledge that the Shareholder Representative deems necessary or appropriate in connection with is specifically authorized and directed to act on behalf of, and for the consummation of the transactions contemplated benefit of, all Selling Shareholders and their respective successors and assigns. All decisions and actions by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary shall be binding upon each Selling Shareholder and its successors and assigns, and neither they nor any other Party shall have the right to object, dissent, protest or appropriate, whether prior to, at or after otherwise contest the Closing;
(iv) to receive funds for the payment same. The provisions of expenses of the Equityholders this Section 12.16 are irrevocable and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that coupled with an interest. The Shareholder Representative hereby accepts its appointment and authorization as the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to Any other Person, including the Surviving Corporation by Purchaser Representative, Purchaser and the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentCompany, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction actions of the Shareholder Representative in all matters referred to hereinas the acts of the Selling Shareholders under any Shareholder Representative Documents. The Shareholder Representative may act in reliance upon any instructionPurchaser Representative, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine Purchaser and the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative Company shall be entitled to recover rely conclusively on the instructions and decisions of the Shareholder Representative as to (i) any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred payment instructions provided by the Shareholder Representative on demand in connection with or (ii) any other actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel required or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted permitted to be taken by the Shareholder Representative under this Agreement hereunder, and no Selling Shareholder shall have any cause of action against the Purchaser Representative, Purchaser or the Escrow AgreementCompany for any action taken by any of them in reliance upon the instructions or decisions of the Shareholder Representative. The Purchaser Representative, Purchaser and the Company shall not have any Liability to any Selling Shareholder for any allocation or distribution among the Selling Shareholders by the Shareholder Representative of payments made to or at the direction of the Shareholder Representative. All notices or other than communications required to be made or delivered to a Selling Shareholder under any Shareholder Representative Document shall be made to the Shareholder Representative for the benefit of such liabilitiesSelling Shareholder, losses, damages, claims, costs and any notices so made shall discharge in full all notice requirements of the other parties hereto or expenses determined thereto to such Selling Shareholder with respect thereto. All notices or other communications required to be made or delivered by a non-appealabe order Selling Shareholder shall be made by the Shareholder Representative (except for a notice under Section 10.15(d) of the replacement of the Shareholder Representative).
(c) The Shareholder Representative shall not be liable for any act done or judgment omitted under any Shareholder Representative Document as the Shareholder Representative while acting in good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of a court counsel shall be conclusive evidence of such good faith. The Selling Shareholders shall indemnify, defend and hold harmless the Shareholder Representative from and against any and all losses incurred without gross negligence, bad faith or tribunal willful misconduct on the part of competent jurisdiction the Shareholder Representative (in his capacity as such) and arising out of or resulting from in connection with the acceptance or administration of the Shareholder Representative’s willful violation duties under any Shareholder Representative Document, including the reasonable fees and expenses of any legal counsel retained by the law Shareholder Representative. In no event shall the Shareholder Representative in such capacity be liable hereunder or gross negligence in connection herewith for any indirect, punitive, special or consequential damages. The Shareholder Representative shall be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine, including facsimiles or copies thereof, and no Person shall have any Liability for relying on the Shareholder Representative in the foregoing manner. In connection with the performance of its duties under this Agreement. The rights and obligations hereunder, the Shareholder Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of Purchaser, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Shareholder Representative may consult with legal counsel deem necessary or appropriate from time to time. All of its selection in the event of any dispute or question as indemnities, immunities, releases and powers granted to the meaning or construction of any Shareholder Representative under this Section 12.16 shall survive the Closing and continue indefinitely.
(d) The Person serving as the Shareholder Representative may resign upon ten (10) days’ prior written notice to the other Parties to this Agreement, provided that the Shareholder Representative appoints in writing a replacement Shareholder Representative and provides written notice of the provisions hereof or its duties hereunderidentity of such successor to the other Parties hereto. Each successor Shareholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and it the term “Shareholder Representative” as used herein shall incur no liability be deemed to the Equityholders in acting in accordance with the opinion and instructions of include any such counselsuccessor Shareholder Representatives.
Appears in 1 contract
Shareholder Representative. (a1) By approving this Merger Agreement and accepting the Merger Consideration, each of the Shareholders hereby irrevocably makes, constitutes, and appoints ▇▇▇ ▇. ▇▇▇▇▇▇ as the representative, agent and true and lawful attorney in fact of and for each of the Shareholders in connection with this Agreement (the "Shareholder Representative"). Each of the EquityholdersShareholders hereby authorizes and empowers the Shareholder Representative to make or give any approval, by virtue waiver, request, consent, instruction or other communication on behalf of each of the adoption Shareholders as each such Shareholder could do for himself, itself or herself, including with respect to the amendment of any provision of this Agreement. Each of the Shareholders further authorizes and empowers the Shareholder Representative to (i) receive all demands, notices or other communications directed to such Shareholder under this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed to take any action (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder or to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and determine to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all taking any action) with respect thereto as he may deem appropriate as effectively as such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to could act for himself, itself or herself (including, without limitation, the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to settlement or compromise of any indemnity claim on behalf of the Company Shareholders dispute or controversy) and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates instruments and documents that of every kind incident to the foregoing with the same effect as if such Shareholder had executed and delivered such instruments and documents personally. Accordingly, any demands, notices or other communications directed to the Shareholders hereunder shall be deemed effective if given to the Shareholder Representative deems necessary Representative. Upon the death, resignation or appropriate in connection with the consummation incapacity of the transactions contemplated Shareholder Representative, or at any other time, a successor may be appointed by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses vote of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf holders of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of the Shares outstanding shares of Company Common Stock as of immediately prior to the Effective Time, and such successor shall agree in writing to accept such appointment in accordance with the terms hereof. ParentNotice of the selection of a successor Shareholder Representative appointed in the manner permitted in this Section 14.11 shall be provided to ▇▇▇▇ and Merger Corp. promptly.
(2) Without limiting the generality of the foregoing paragraph (1), if ▇▇▇▇, Merger Corp. or any of the other Persons specified in Section 11.1 asserts a claim for indemnification based upon the provisions of Section 11, the Surviving Corporation notice requirements of Sections 11.3 and 14.8 shall be satisfied by delivery of any other Person may conclusively required notice to the Shareholder Representative as representative of and absolutely relyon behalf of each of the Shareholders, without inquiryand the Shareholder Representative shall exercise all rights of the Shareholders, upon any actionas indemnifying parties under Section 11, decisionand shall cause all obligations of the Shareholders, consent or instruction as indemnifying parties under Section 11, to be performed. Each of the Shareholders agrees to be bound by all actions and failures to act of the Shareholder Representative in all matters referred to hereinaccordance with this Section 14.11. The Shareholder Representative may act in reliance upon any instructionNotwithstanding the foregoing, noticeit shall be the obligation of each Shareholder, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity and not of the service thereofShareholder Representative, or to indemnify ▇▇▇▇, Merger Corp. and the jurisdiction other Persons specified in Section 11.1 based upon the provisions of Section 11. By approving this Merger Agreement and by accepting the court issuing any judgment or order. The Merger Consideration, each Shareholder Representative may act in reliance upon any signature believed by it hereby agrees to be genuine, indemnify and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner save and hold harmless the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for from any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably liability incurred by the Shareholder Representative on demand in connection with actions taken by based upon or arising out of any act, whether of omission or commission, of the Shareholder Representative pursuant to the terms hereof (including the hiring authority herein granted, other than acts, whether of legal counsel omission or advisors and the incurring commission, of legal fees and other costs) from the Shareholder Representative Expense Fund. In that constitute gross negligence or willful misconduct in the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred exercise by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselauthority herein granted.
Appears in 1 contract
Sources: Merger Agreement (Gray Communications Systems Inc /Ga/)
Shareholder Representative. (a) Each The Shareholders herein have and do hereby irrevocably make, constitute and appoint the individuals designated as their agent (the "Shareholder's Representative") and authorize and empower him or her to fulfill the role of Shareholder's Representative hereunder. In the event of the Equityholders, by virtue resignation of the adoption Shareholder's Representative, the resigning Shareholder's Representative shall appoint a successor from among the Shareholders and who shall agree in writing to accept such appointment. If the Shareholder's Representative should die or become incapacitated, his or her successor shall be appointed within 15 days of this Agreement his or her death or incapacity by a majority of the Shareholders, and thereby such successor shall be an Shareholder. The choice of a successor Shareholder's Representative appointed in any manner permitted above shall be final and binding upon all of the Merger by Shareholders. (The decisions and actions of any successor Shareholder's Representative shall be, for all purposes, those of a Shareholder's Representative as if originally named in the Company Transfer Agreement.)
(b) Each Shareholder Approvalhas made, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its the execution of this Agreement hereby irrevocably makes, constitutes and appoints the Shareholder's Representative as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive such person's true and lawful agent attorney in fact and attorney-in-fact (the “Shareholder Representative”)agent, of the Equityholders receiving consideration hereunder to act for such person and in the such person's name, place and stead of for all purposes necessary or desirable in order for the Equityholders in connection with Shareholder's Representative to take the transactions actions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act Transaction Documents on behalf of the Equityholders in any Proceeding involving this AgreementShareholders, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) ability to execute and deliver all amendments, waivers, ancillary agreements, stock powersinstruments, certificates and other documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such Shareholder could do personally, and each such Shareholder hereby ratifies and confirms as his, her, or its own act, all that the Shareholder Shareholder's Representative deems necessary shall do or appropriate in connection with cause to be done pursuant to the consummation of the transactions contemplated by this Agreement;
(iii) provisions hereof. All notices and communications directed to execute and deliver all amendments and waivers to Shareholders under this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating shall be given to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholder's Representative.
(bc) The death or incapacity of any Shareholder Representative may be removed or replaced only upon delivery of written notice to shall not terminate the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation authority and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction agency of the Shareholder Shareholder's Representative.
(d) The Shareholders hereby agree to indemnify the Shareholder's Representative in all matters referred and to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney hold him or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold her harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilitiesloss, losses, damages, claims, costs liability or expenses suffered or expense incurred by without bad faith on the Shareholder part of the Shareholder's Representative and arising out of or resulting from any action taken in connection with his or omitted to be taken her duties as Shareholder's Representative, including the reasonable costs and expenses incurred by the Shareholder Shareholder's Representative under this Agreement in defending against any claim or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence liability in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselconnection herewith.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the adoption of this Agreement and as set forth in the Letters of Transmittal and the Contribution Agreement, ▇▇▇▇▇▇▇ and Newport are hereby authorized, directed and appointed to act as sole and exclusive agents, attorneys-in-fact and representatives of the Shareholders (each a “Shareholder Representative” and, collectively the “Shareholder Representatives”), with full power of substitution with respect to all matters under this Agreement and Escrow Agreement and the transactions contemplated hereby and thereby. The Company has designated the Shareholder Representatives as the representatives of the Shareholders for purposes of this Agreement and the Escrow Agreement, and approval of this Agreement and the Merger by such holders shall constitute ratification and approval of such designation on the terms set forth herein. All decisions, actions, consents, and instructions by the Shareholder Representatives with respect to this Agreement and the Escrow Agreement shall be absolutely and irrevocably binding upon all of the Shareholders with respect to their interests as shareholders under this Agreement and the Escrow Agreement, and no such Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Shareholder Representatives shall act in unanimity with respect to any decision, action, consent or instruction contemplated by this Agreement and in all communications with Buyer and Merger Sub, and Buyer and Merger Sub shall be entitled to rely on any such decision, action, consent or instruction as being the decision, action, consent or instruction of the Shareholders. Buyer and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent, or instruction. By way of amplification and not limitation, as Shareholder Representatives, the Shareholder Representatives shall be authorized and empowered, as agents of and on behalf of all Shareholders (only with respect to their interests as Shareholders) (i) to give and receive notices and communications as provided herein, (ii) to receive certain distributions of the Final Merger Consideration and the China Joint Venture Dividend for the benefit of the Shareholders, (iii) to object to any Buyer Indemnification Claims, (iv) to agree to, negotiate, enter into settlements, and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims or Losses, (v) to resolve any other disputes under this Agreement or the Escrow Agreement, (vi) to grant any waiver, consent or approval on behalf of the Shareholders under this Agreement and the Escrow Agreement (except for any consent or approval of the Shareholders of the Merger, the Merger Agreement and the transactions contemplated hereby), (vii) to receive service of process on behalf of each shareholder of the Company in connection with any claims against such shareholder arising under or in connection with this Agreement, any document or instrument provided for hereby or any of the transactions contemplated hereby or thereby, (ix) to appoint, in its sole discretion, one or more successor Shareholder Representatives, and (x) to take all other actions that are either (1) necessary or appropriate in the judgment of the Shareholder Representatives for the accomplishment of the foregoing or (2) specifically mandated by the terms of this Agreement. Notices or communications to or from both of the Shareholder Representatives shall constitute notice to or from the Shareholders.
(b) Each of the EquityholdersShareholder Representatives hereby accepts the foregoing appointment and agrees to serve as a Shareholder Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement or payment from the Shareholders (other than holders of Dissenting Shares) of all fees and expenses incurred by the Shareholder Representatives in performing his or its duties hereunder (including legal fees and expenses related thereto) and any indemnification in favor of the Shareholder Representatives, in each case pro rata in accordance with the portion of the Final Merger Consideration each such shareholder would otherwise have been entitled to receive by virtue of the ownership of outstanding Shares immediately before the Effective Time (each such shareholder’s pro rata interest, a “Pro-Rata Share”). The Company and the Shareholder Representatives will, at least two (2) days prior to the Closing Date, direct, by joint written notice to Buyer, that on the Closing Date an amount equal to TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) (the “Shareholder Representatives’ Holdback”), shall be paid directly by the Surviving Corporation to the Shareholder Representatives as designated in such notice, as a fund for the fees and expenses of the Shareholder Representatives incurred in connection with this Agreement, the Escrow Agreement and the Indemnity Agreement (the “Shareholder Representatives’ Holdback Account”), with any balance of the Shareholder Representatives’ Holdback Account not used for such purposes (as determined by the Shareholder Representatives in good faith) to be paid by the Shareholder Representatives to the Shareholders in accordance with their respective Pro-Rata Share. The Shareholders shall not receive interest or other earnings on the Shareholder Representatives’ Holdback and, by virtue of the adoption of this Agreement and thereby as set forth in the Merger by Letters of Transmittal, irrevocably transfer and assign to the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC Representatives any ownership right that they may have in any interest that may accrue on funds held in the Shareholder Representatives’ Holdback Account. To the extent that the Shareholder Representatives’ Holdback does not sufficiently cover the fees and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), expenses of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders Shareholder Representatives incurred in connection with the transactions contemplated by this Agreement, the Escrow Agreement and the Indemnity Agreement, such shortfall shall be paid in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Contribution Agreement.
(bc) The In dealing with this Agreement and any notice, instrument, agreement or document relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative may be removed Representatives hereunder or replaced only upon delivery thereunder, (i) the Shareholder Representatives and his or its agents, counsel, accountants and other representatives shall not assume any, and shall not incur any, responsibility or liability whatsoever to any shareholder of written notice the Company, except to the Surviving Corporation extent such actions shall have been determined by the Company Shareholders holding at least a majority court of outstanding shares of Company Common Stock as of immediately prior competent jurisdiction to the Effective Time. Parenthave constituted willful misconduct or actual or intentional fraud, the Surviving Corporation and any other Person may conclusively shall be entitled to assume that all actions, decisions and absolutely rely, without inquiry, upon any action, decision, consent or instruction determinations are fully authorized by each and every one of the Shareholders, (ii) the Shareholder Representative Representatives shall be entitled to rely in all matters referred good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, (iii) the Shareholder Representatives shall be entitled to herein. The Shareholder Representative may act in reliance upon rely on any instructionorder, noticejudgment, certification, demand, consentnotice, authorization, receipt, power of attorney instrument or other writing delivered to it by any other person other than itself hereunder or under the Escrow Agreement without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, therein or the propriety or validity of the service thereof, or (iv) the jurisdiction of the court issuing any judgment or order. The Shareholder Representative Representatives may act in reliance upon any instrument or signature believed by it to be genuine, genuine and may assume that such person the Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been properly duly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner , and (v) the Shareholder Representative believes Representatives may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to be instruct the Shareholder Representatives on behalf of that party unless written notice to the contrary is delivered to the Shareholder Representatives. Except in cases where a court of competent jurisdiction has made such a finding, the best interests Shareholders shall on a pro rata basis (based on each such shareholder’s Pro-Rata Share) indemnify and hold harmless the Shareholder Representatives from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his or its activities as the Equityholders and consistent with the obligations Shareholder Representatives under this Agreement, but the Escrow Agreement or otherwise.
(d) The grant of authority provided for in this Section 2.12 is coupled with an interest and is irrevocable and is being granted, in part, as an inducement to Buyer and Merger Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the dissolution, liquidation or bankruptcy of the Company or the death, incompetency, liquidation or bankruptcy of any shareholder of the Company, shall be binding on any successor thereto and shall survive the assignment by any shareholder of the Company of the whole or any portion of his or its interest in any payment due to it under this Agreement or the Escrow Agreement or in the Escrow Fund. The appointment of the Shareholder Representative shall not be responsible Representatives as each shareholder’s attorneys-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such shareholder with regard to this Agreement and the Equityholders for any Damages the Equityholders may suffer by Escrow Agreement.
(e) In connection with the performance of his or its duties under this Agreementobligations hereunder, other than Damage arising the Shareholder Representatives shall have the right, acting together, at any time and from willful violation time to time to select and engage, at the cost and expense of the law Shareholders (as contemplated by Section 2.12(b)), attorneys, accountants, investment bankers, advisors, consultants, and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order it may deem necessary or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or desirable and incur other out-of-pocket costs and expenses reasonably incurred by related to performing his or its services hereunder. Except for reimbursement of out-of-pocket expenses, the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal Representatives shall receive no fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties their services under this Agreement. The Shareholder Representative Representatives may consult act pursuant to the advice of counsel with legal counsel respect to any matter relating to this Agreement or the Escrow Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice.
(f) Buyer hereby agrees that the Shareholder Representatives shall not, in their capacities as such, have any liability to Buyer or any of its selection in the event of any dispute Affiliates whatsoever with respect to their actions, decisions or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur determinations. The Shareholder Representatives hereby agree that Buyer has no liability to any Person with respect to the Equityholders actions, decisions or determinations of the Shareholder Representatives, in acting in accordance their capacity as such.
(g) All of the immunities and powers granted to the Shareholder Representatives under this Agreement with respect to this Agreement and the opinion Escrow Agreement shall survive the Closing and/or any termination of this Agreement, except that such powers (but not immunities) shall terminate upon termination of this Agreement.
(h) In connection with his or its appointment as a Shareholder Representative hereunder, each of ▇▇▇▇▇▇▇ and instructions Newport hereby represents and warrants to Buyer (only with respect to themselves) that he or it has all requisite power and authority to execute and deliver this Agreement and each of such counselthe Ancillary Agreements to which he or it will be a party, to perform his or its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Newport of this Agreement and each of the Ancillary Agreements to which it will be a party, the performance by Newport of its obligations hereunder and thereunder and the consummation by Newport of the transactions contemplated hereby have been duly and validly authorized by all requisite action on the part of Newport.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger ▇▇. ▇▇▇▇ is hereby designated by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC HS Shareholders and shall have irrevocably constituted and appointed (and by its execution of this Agreement the HP Owners to serve as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the their “Shareholder Representative”)” under this Acquisition Agreement with respect to the matters set forth in this Article 7 and, by his signature below, ▇▇. ▇▇▇▇ hereby acknowledges such appointment and agrees to serve in such capacity on the terms set forth herein. Effective only upon the Closing, the Shareholder Representative shall act as the representative of the Equityholders receiving consideration hereunder HS Shareholders and the HP Owners with respect to act the matters set forth in the name, place this Article 7 and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and shall be authorized to act on behalf of such persons and to take any and all actions required or permitted to be taken by the Equityholders in HS Shareholders and the HP Owners under this Article 7 with respect to any Proceeding involving claims (including the settlement thereof) made by Calavo for indemnification pursuant to this AgreementArticle 7 (including, without limitation, the exercise of the power to do or refrain from doing all such further acts agree to, negotiate, enter into settlements and thingscompromises of, and to execute all such documents comply with orders of courts and arbitrators with respect to, any claims for indemnification). ▇▇. ▇▇▇▇, during the period that he serves as the Shareholder Representative Representative, shall deem necessary or appropriate in connection with be the transactions contemplated by this Agreement, including only party entitled to assert the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf rights of the Company HS Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by HP Owners under this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or Article 7 after the Closing;
(iv) . Any person shall be entitled to receive funds for the payment of expenses rely on all statements, representations, and decisions of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementRepresentative.
(b) The Shareholder Representative may HS Shareholders and the HP Owners shall be removed or replaced only upon delivery of written notice to the Surviving Corporation bound by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of all actions taken by the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do sohis capacity as such. The Shareholder Representative shall act for the Equityholders on all of the matters set forth promptly, and in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreementany event within ten days, but the Shareholder Representative shall not be responsible provide written notice to the Equityholders for HS Shareholders and the HP Owners of any Damages the Equityholders may suffer by the performance action taken on behalf of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken them by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted authority delegated to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this AgreementArticle 7. The Shareholder Representative may consult with legal counsel shall not be liable to any HS Shareholder or HP Owner for any error of judgment, or any action taken, or omitted to be taken, under this Acquisition Agreement, except in the case of its selection in gross negligence or willful misconduct. The Shareholder Representative shall not be entitled to any compensation for his services. ▇▇. ▇▇▇▇ agrees not to resign his position as the event Shareholder Representative except by reason of any dispute his disability or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counseldeath.
Appears in 1 contract
Shareholder Representative. (aA) The Shareholders irrevocably make, constitute and appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their agent (the "Shareholder Representative") and authorize and empower him to fulfill the role of Shareholder Representative hereunder for a period of seven (7) years after the Closing Date. If a Shareholder Representative should resign, die or become incapacitated, its or his successor shall be appointed within 30 days of his resignation, death or incapacity by a majority of the Shareholders, and such successor either shall be a Shareholder or shall otherwise be acceptable to the Buyer. The choice of a successor Shareholder Representative appointed in any manner permitted above shall be final and binding upon all of the Shareholders. The decisions and actions of any successor Shareholder Representative shall be, for all purposes, those of a Shareholder Representative as if originally named herein.
(B) Each of the EquityholdersShareholder has made, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its the execution of this Agreement as Shareholder Representativehereby irrevocably makes, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive constitutes and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as appoints the Shareholder Representative shall as such person's true and lawful attorney in fact and agent, for such person and in such person's name, (1) to receive all Claim Notices and all other notices and communications directed to such Shareholder under this Agreement and to take any action (or to determine to take no action) with respect thereto as he may deem necessary appropriate as effectively as such Shareholder could act for himself or appropriate in connection with the transactions contemplated by this Agreementherself, including without limitation, the power:
settlement or compromise of any dispute or controversy, (i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii2) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates instruments and documents that of every kind incident to the Shareholder Representative deems necessary foregoing, including, but not limited to, the certificates identified in Section 9.4 hereof, and (3) to represent each such Shareholder's interests in any arbitration or appropriate other judicial or extrajudicial proceeding arising out of or in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but to all intents and purposes and with the same effect as such Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreementcould do personally, other than Damage arising from willful violation of the law and each such Shareholder hereby ratifies and confirms as his or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees her own act, all that the Shareholder Representative shall do or cause to be entitled done pursuant to recover the provisions hereof. Each Shareholder hereby declares that the foregoing powers are coupled with an interest and shall be irrevocable. All Claim Notices and all other notices and communications directed to Shareholders under this Agreement shall be given to the Shareholder Representative.
(C) The death or incapacity of any indemnifiable amounts hereunder or other out-of-pocket costs Shareholder shall not terminate the authority and expenses reasonably incurred by agency of the Shareholder Representative.
(D) The Shareholders hereby agree to indemnify the Shareholder Representative and to hold it or him harmless against any loss, liability or expense incurred without grossly negligent conduct or bad faith on demand in connection with actions taken by the part of the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken in connection with his duties as Shareholder Representative, including the costs and expenses incurred by the such Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment in defending against any claim of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence liability in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselconnection herewith.
Appears in 1 contract
Shareholder Representative. (a) Each of 11.7.1 At the EquityholdersClosing, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and ▇▇▇▇▇▇ shall have irrevocably be constituted and appointed (and by its execution of this Agreement as the Shareholder Representative. The Shareholder Representative shall be the exclusive representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), for and on behalf of the Equityholders receiving consideration hereunder to act in the nameSellers to: (i) give and receive notices, place instructions and stead of the Equityholders communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection with the transactions Transactions, for and on behalf of any Seller, to or from Buyer (on behalf of itself or any other Seller) relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by a Seller individually), (ii) review, negotiate and agree to and authorize Buyer to reclaim an amount from the Aggregate Holdback Amount and Escrow Amount in satisfaction of claims asserted by Buyer (on behalf of itself or any other Buyer Indemnified Party, including by not objecting to such claims) pursuant to Sections 4, 9 and 10, (iii) object to such claims pursuant to Section 10, (iv) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Indemnifying Shareholder or necessary in the judgment of the Shareholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (v) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Indemnifying Shareholders, (vi) consent or agree to, including the execution and delivery of, any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Sellers in accordance with the terms hereof and provisions in the manner provided herein, (vii) pursuant to Section 2 and 3, review, negotiate, object to, accept or agree to Buyer’s calculation of Purchase Price (including any portion thereof such as an Earn-out Payment and any Purchase Price Adjustment); and (viii) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Zenvia and its Affiliates (including after the Closing, the Companies) shall be entitled to rely on the appointment of ▇▇▇▇▇▇ as initial the Shareholder Representative and treat such Shareholder Representative as the duly appointed attorney-in-fact of each Seller and as having the duties, power and authority provided for in this AgreementSection 11.8. The Sellers shall be bound by all actions taken and documents executed by the Shareholder Representative in connection with this Section 11.8, and Buyer and other Buyer Indemnified Parties shall be entitled to act rely exclusively on behalf any action or decision of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents Shareholder Representative. The Person serving as the Shareholder Representative shall deem necessary may resign, or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation at any time by the Company Shareholders Seller’s holding at least a majority more than fifty percent (50%) of outstanding shares of Company Common Stock the Seller Pro-Rata Share as of immediately prior to the Effective Time. Parenteffective time of the Closing, provided that if such Person resigns from its position as the Surviving Corporation and any other Person Shareholder Representative, then a successor may conclusively and absolutely relybe appointed, without inquiryby the Seller’s holding more than fifty percent (50%) of the Seller Pro-Rata Share as of immediately prior to the effective time of the Closing, upon not less than 10 days’ prior written notice to Buyer.
11.7.2 The Shareholder Representative shall not be liable to any action, decision, consent Seller for any act done or instruction of omitted hereunder as the Shareholder Representative while acting in all matters referred good faith (and any act done or omitted pursuant to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power the advice of attorney counsel shall be conclusive evidence of such good faith) and without gross negligence or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do sowillful misconduct. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner serve as the Shareholder Representative believes to be without compensation; provided that the Sellers shall severally but not jointly, on a pro-rata basis (i) in accordance with such Seller’s Seller Pro-Rata Share in the best interests case of matters not related to indemnification matters hereunder, and (ii) in accordance with such Seller’s Indemnification Pro-Rata Share in the Equityholders and consistent with the obligations under this Agreementcase of matters related to indemnification matters hereunder, but indemnify the Shareholder Representative shall not be responsible to and hold him/her/it harmless against any loss, Liability or expense incurred without gross negligence, willful misconduct or bad faith on the Equityholders for any Damages the Equityholders may suffer by the performance part of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder and arising out of, resulting from or other in connection with the acceptance or administration of his duties hereunder, including without limitation all reasonable out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholder Representative on demand in connection with actions taken (collectively, the “Shareholder Representative Expenses”). If not paid directly to the Shareholder Representative by the Sellers, such losses, Liabilities or expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund Amount and (ii) in the case of Shareholder Representative Expenses related to indemnification matters hereunder, the portion of the Aggregate Holdback Amount or Escrow Account otherwise distributable to the Indemnifying Shareholders (and not distributed or distributable to a Buyer Indemnified Party or subject to a Resolved Claim or an Unresolved Claim) on or after the applicable date of release and payment of such amounts by Buyer to the Indemnifying Shareholders pursuant to the terms hereof hereof, at the time of distribution, and such recovery will be made from the Sellers according to their respective Seller Pro-Rata Shares or Indemnification Pro-Rata Share (including the hiring depending on whether such matters do not relate, or relate, to indemnification matters hereunder, respectively) of legal counsel such losses, Liabilities or advisors and the incurring of legal fees and other costs) from expenses; provided, that while this section allows the Shareholder Representative Expense Fund. In to be paid from the event aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such recovery is precluded Shareholder Representative Expenses as they are suffered or unattainable for over thirty days after demand thereof from incurred, nor does it prevent the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of seeking any and all liabilities, losses, damages, claims, costs remedies available to it at law or expenses suffered or incurred by otherwise. In no event will the Shareholder Representative arising out be required to advance its own funds on behalf of the Sellers or resulting from otherwise. Notwithstanding anything in this Agreement to the contrary, any action taken restrictions or omitted limitations on liability or indemnification obligations of the indemnifying Shareholders set forth elsewhere in this Agreement are not intended to be taken by applicable to the indemnities provided to the Shareholder Representative under this Agreement Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the Escrow termination of this Agreement.
11.7.3 The Buyer shall not, in any circumstance, be liable for any acts or omissions of the Shareholders Representative related to the Sellers, including, but not limited to, with regards to any conflict or dispute between the Shareholders Representative and the Sellers in relation to the content and conditions of this Agreement. The Sellers agree that the appointment of the Shareholders’ Representative pursuant to his duties mentioned in Section 11.8.1 shall not, in any circumstance, be considered as the Sellers have not reviewed, negotiated or agreed with any provision contained in this Agreement and, as such, the Sellers shall not be exempted from complying with any obligation applicable to the Sellers under this Agreement due to the appointment of the Shareholders’ Representative.
11.7.4 Upon the Closing, Buyer will wire to the Shareholder Representative the Expense Fund Amount, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative for, any Shareholder Representative Expenses incurred pursuant to this Agreement and any other agreement, document or instrument entered into or executed in connection with the Transactions. The Shareholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund Amount, and has no tax reporting or income distribution obligations. The Sellers will not receive any interest or earnings on the Expense Fund Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such liabilitiesinterest or earnings. As soon as practicable following the earlier of (i) the twenty-four (24) month anniversary of the Closing Date, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment and (ii) the completion of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation responsibilities, the Shareholder Representative will deliver any remaining balance of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as Expense Fund Amount to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting Indemnifying Shareholders in accordance with their Indemnification Pro-Rata Share thereof. For tax purposes, the opinion Expense Fund Amount will be treated as having been received and instructions voluntarily set aside by the Indemnifying Shareholders at the time of such counselClosing.
Appears in 1 contract
Shareholder Representative. (a) Each 7.6.1 In order to administer efficiently the defense and/or settlement of any Parent claims for which the EquityholdersCompany Shareholders may be required to indemnify any Parent Indemnified Parties pursuant to Article 7 hereof, and to administer efficiently the notice provisions under this Agreement, all holders of shares of Company Capital Stock, by virtue their acceptance of merger consideration hereunder, irrevocably appoint the adoption of this Agreement and thereby the Merger by the Company Shareholder ApprovalRepresentative as their agent, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact and representative (with full power of substitution in the premises), and, by his execution hereof, the Shareholder Representative hereby accepts such appointment. For purposes of this Section 7.6, “Company Shareholder” shall mean all holders of Company Capital Stock, Company Warrants and Company Options.
7.6.2 The Company Shareholders hereby authorize the Shareholder Representative to (i) take all action necessary or desirable in connection with the defense and/or settlement of any Parent claims for which the Company Shareholders may be required to indemnify any Parent Indemnified Party pursuant to Article 7 hereof, and (ii) give and receive all notices required to be given under this Agreement, the Escrow Agreement and the other agreements contemplated hereby to which the Company Shareholders or their respective properties or assets are subject.
7.6.3 Notwithstanding anything in Article 7 to the contrary, to the extent that any Parent Indemnified Party makes a claim solely and directly against any Party (and not from the Escrow Fund) for fraud or intentional misrepresentation, such claim and any notices, negotiations, defense or settlements of such claim may only be made to and against such particular Company Shareholder and the Shareholder Representative shall have no authority to receive notices, compromises or settlements or defend or take any other action on behalf of such Company Shareholder.
7.6.4 In the event that the Shareholder Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Company Shareholders who held a majority of the voting power represented by the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement. If the position of Shareholder Representative shall remain vacant for more than 60 days, Parent may designate any Company Shareholder as the Shareholder Representative”), and such Company Shareholder shall serve as the Shareholder Representative until the Company Shareholders shall elect a successor pursuant to this Section 7.6.4.
7.6.5 All decisions and actions by the Shareholder Representative, including the defense and/or settlement of any Parent claims for which the Company Shareholders may be required to indemnify any Parent Indemnified Party pursuant to Article 7 shall be binding upon all of the Equityholders receiving consideration hereunder Company Shareholders, and no Company Shareholder shall have the right to act in object, dissent, protest or otherwise contest the name, place same.
7.6.6 The Company Shareholders agree that:
7.6.6.1 Parent shall be able to rely conclusively on the instructions and stead decisions of the Equityholders Shareholder Representative as to the settlement of any Parent claims for indemnification of any Parent Indemnified Party pursuant to Article 7 or any other actions required to be taken by the Shareholder Representative hereunder, and no Party hereunder shall have any cause of action against any Parent Indemnified Party for any action taken by any Parent Indemnified Party in reliance upon the instructions or decisions of the Shareholder Representative. Notices or communications to or from the Shareholder Representative constitute notice to or from each of the Company Shareholders for all purposes under this Agreement.
7.6.6.2 All actions, decisions and instructions of the Shareholder Representative shall be conclusive and binding upon all Company Shareholders and no Company Shareholder shall have any cause of action against the Shareholder Representative for any action taken or not taken, decision made or instruction given by the Shareholder Representative under this Agreement, except for fraud, gross negligence, willful misconduct or bad faith by the Shareholder Representative.
7.6.6.3 The Company Shareholders shall indemnify and hold harmless, in proportion to their respective distributions of merger consideration, the Shareholder Representative from all loss, liability or expense (including the reasonable fees and expenses of counsel) arising out of or in connection with the Shareholder Representative’s execution and performance of this Agreement and the Escrow Agreement, and his actions hereunder and thereunder, except for fraud, willful misconduct or gross negligence by the Shareholder Representative.
7.6.6.4 The provisions of this Section 7.6 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the transactions contemplated by this Agreement, in accordance with the terms and .
7.6.6.5 The provisions of this AgreementSection 7.6 shall be binding upon the heirs, legal representatives, successors and assigns of each Company Shareholder, and any references in this Agreement to act on behalf a Company Shareholder shall mean and include the successors to the rights of such Company Shareholder hereunder, whether pursuant to testamentary disposition, the Equityholders in any Proceeding involving laws of descent and distribution, assignment or otherwise.
7.6.6.6 The Shareholder Representative shall be paid a fee of $100,000 for the performance of his duties and responsibilities under this Agreement, Agreement and the Escrow Agreement and that such fee shall constitute a Transaction Cost pursuant to do or refrain from doing all such further acts Section 2.6.7.
7.6.7 All fees and things, and to execute all such documents as expenses incurred by the Shareholder Representative shall deem necessary or appropriate in connection with this Agreement in an amount up to $250,000 shall be paid directly from the transactions contemplated Escrow Fund within five business days following a written request by this Agreementthe Shareholder Representative.
7.6.8 From and after the Effective Time, including Parent shall cause the power:
(i) Surviving Corporation to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that provide the Shareholder Representative deems necessary with reasonable access during normal business hours to specifically identified information about the Surviving Corporation solely for purposes of objecting to or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary verifying or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing resolving any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any disputed indemnification claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees provided that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred treat all such information at all times as confidential (except in connection with the performance by the Shareholder Representative on demand in connection with actions taken of his duties or the exercise of his rights under this Agreement).
7.6.9 The Shareholder Representative is hereby authorized by the Shareholder Representative pursuant Company Shareholders to enter into the terms hereof (including Escrow Agreement on the hiring behalf of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselCompany Shareholders.
Appears in 1 contract
Sources: Merger Agreement (Applera Corp)
Shareholder Representative. (a) Each In order to administer efficiently (i) the adjustment to the number of Acquisition Shares, (ii) the waiver of any condition to the obligations of the EquityholdersShareholders to consummate the transactions contemplated hereby, by virtue and (iii) the defense and/or settlement of any claims for which the Shareholders may be required to indemnify the Buyer or the Company pursuant to Section 7 hereof, the Shareholders hereby designate Mart▇▇ ▇▇▇▇ ▇▇ their representative (the "Shareholder Representative").
(b) The Shareholders hereby authorize the Shareholder Representative (i) to make all decisions relating to the adjustment to the number of Acquisition Shares, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the adoption Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Shareholders may be required to indemnify the Buyer or the Company pursuant to Section 7 hereof, (iii) to give and receive all notices required to be given under this Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement or the Escrow Agreement.
(c) In the event that the Shareholder Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, Shareholders holding, prior to the Closing, a majority of the Shares as set forth on SCHEDULE I attached hereto shall select another representative to fill such vacancy and thereby such substituted representative shall be deemed to be the Merger Shareholder Representative for all purposes of this Agreement.
(d) All decisions and actions by the Company Shareholder ApprovalRepresentative shall be binding upon all of the Shareholders, hereby appoints GF Private Equity Group, LLC and no Shareholder shall have irrevocably constituted and appointed the right to object, dissent, protest or otherwise contest the same.
(and by its e) By their execution of this Agreement as Agreement, the Shareholders agree that:
(1) the Buyer shall be able to rely conclusively on the instructions and decisions of the Shareholder Representative relating to the adjustment of the number of Acquisition Shares and the settlement of any claims for indemnification by the Buyer or the Company pursuant to Section 7 hereof or any other actions required or permitted to be taken by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Shareholder Representative;
(2) all actions, GF Private Equity Groupdecisions and instructions of the Shareholder Representative shall be conclusive and binding upon all of the Shareholders and no Shareholder shall have any cause of action against the Shareholder Representative for any action taken, LLC hereby accepts its appointment) as decision made or instruction given by the trueShareholder Representative under this Agreement, exclusive and lawful agent and attorney-in-fact (except for fraud or willful breach of this Agreement by the “Shareholder Representative”);
(3) the provisions of this Subsection 1.06 are independent and severable, of the Equityholders receiving consideration hereunder to act in the name, place are irrevocable and stead of the Equityholders coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement, in accordance with ;
(4) remedies available at law for any breach of the terms and provisions of this AgreementSubsection 1.06 are inadequate; therefore, the Buyer and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that enforce the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter provisions of this Agreement as fully and completely as the Equityholders could do if personally presentSubsection 1.06; and
(vi5) the provisions of this Subsection 1.06 shall be binding upon the executors, heirs, legal representatives and successors of each Shareholder, and any references in this Agreement to receive service a Shareholder or the Shareholders shall mean and include the successors to the Shareholders' rights hereunder, whether pursuant to testamentary disposition, the laws of process in connection with any claims under this Agreementdescent and distribution or otherwise.
(bf) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation All fees and expenses incurred by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred paid by the Shareholder Representative Shareholders in proportion to their ownership of Shares as set forth on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselSCHEDULE I attached hereto.
Appears in 1 contract
Sources: Share Purchase Agreement (International Integration Inc)
Shareholder Representative. (a) Each Catapult Shareholder hereby irrevocably confirms the appointment of D▇▇▇▇ ▇▇▇▇ as the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as “Shareholder Representative, GF Private Equity Group, LLC hereby accepts ” and as his/its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), with full power of the Equityholders receiving consideration hereunder substitution to act in from and after the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions date of this Agreement, Agreement and to act do any and all things and execute any and all documents on behalf of the Equityholders in any Proceeding involving this Agreementsuch Catapult Shareholder that may be necessary, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary convenient or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by this Agreement;
, including but not limited to: (i) execution of the other documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement, in accordance with this Agreement, subject to the terms hereof; (iii) to execute receipt and deliver all amendments forwarding of notices and waivers communications pursuant to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
Agreement; (iv) to receive funds for the payment of expenses administration of the Equityholders and apply such funds in payment for such expenses;
provisions of this Agreement; (v) to do giving or refrain from doing any further act or deed agreeing to, on behalf of the Equityholders that such Catapult Shareholder, any and all consents, waivers, amendments or modifications deemed by the Shareholder Representative deems Representative, in his sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally presentconnection therewith; and
(vi) amending (or waiving any provisions of) this Agreement or any other document contemplated hereby to receive service be delivered to Cerberus pursuant to this Agreement; (vii) taking actions the Shareholder Representative is expressly authorized to take pursuant to the other provisions of process this Agreement; (viii) disputing or refraining from disputing, on behalf of such Catapult Shareholder relative to any amounts to be received or paid by such Catapult Shareholder under this Agreement, any claim made by Cerberus under this Agreement; (ix) negotiating and compromising, on behalf of such Catapult Shareholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement; (x) executing, on behalf of such Catapult Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; and (xi) engaging attorneys, accountants, agents or consultants on behalf of such Catapult Shareholder in connection with this Agreement and paying any claims under this Agreementfees related thereto.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative Cerberus shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand fully protected in connection dealing with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or and may rely upon the Escrow authority of the Shareholder Representative in such capacity to act on behalf of the Catapult Shareholders. Any payment by Cerberus to the Shareholder Representative to the extent authorized under this Agreement, other than such liabilitiesshall be considered a payment by Cerberus to the Catapult Shareholders, lossesas applicable.
(c) The Shareholder Representative shall not be liable to the Catapult Shareholders in its capacity as such, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation for any liability of the law Catapult Shareholders or gross negligence for any error of judgment, or any act done or step taken or omitted by it that it believed to be in the performance of its duties under 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. The Shareholder Representative may consult with seek the advice of legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof of this Agreement or its duties hereunder, and it and, without limiting the foregoing, D▇▇▇▇ ▇▇▇▇ shall incur no liability Liability in its capacity as the Shareholder Representative, and shall be fully protected with respect to the Equityholders any action taken, omitted or suffered by it in acting good faith in accordance with the opinion and instructions advice of such counsel.
(d) Each Catapult Shareholder, severally and not jointly, hereby agrees to indemnify the Shareholder Representative (in its capacity as such) against, and to hold the Shareholder Representative (in its capacity as such) harmless from, its relative pro rata percentage of any and all Losses of whatever kind which may at any time be imposed upon, incurred by or asserted against the Shareholder Representative in such capacity in any way relating to or arising out of the Shareholder Representative’s action or failure to take action pursuant to this Agreement or in connection herewith or therewith in such capacity.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cerberus Cyber Sentinel Corp)
Shareholder Representative. (a) Each The Shareholders hereby irrevocably constitute and appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇, with full power of the Equityholderssubstitution and re-substitution, by virtue of the adoption of this Agreement as its and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive their true and lawful agent and agent, attorney-in-fact and representative (such person and his appointed and designated successor or successors being herein referred to as the “"Shareholder Representative”"), with full power to act for and on behalf of the Equityholders receiving consideration hereunder to act in the nameShareholders, place and stead each of the Equityholders them, for all purposes under this Agreement and in connection with the transactions contemplated by this Agreementhereby including, in accordance with the terms and provisions of this Agreementwithout limitation, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
for purposes of: (i) to act for determining the Equityholders with regard to matters pertaining to indemnification referred to in this Agreementamount of damages suffered or incurred by the Shareholders, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain receiving notices from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations iBIZ given under this Agreement, but of which the Shareholder Representative shall not be responsible will give a copy to the Equityholders for Investors and the Shareholders, (iv) approving and agreeing with iBIZ as to additions, deletions, changes, modifications and amendments to this Agreement and the Annexes hereto, except with respect to any Damages addition, deletion, change, modification or amendment to a material financial term or condition of any of such documents that would materially, financially and adversely affect the Equityholders may suffer by Shareholders, and (v) settling finally and completely any disputes or controversies among the performance of its duties under this Agreement, parties hereto (other than Damage arising from willful violation solely among the Shareholders) with respect to the interpretation or effect of the law or gross negligence in the performance of its duties damages or relief under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionand any and all transactions contemplated hereby. Each of the Equityholders agrees that the The Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder reimbursement by the Shareholders from the consideration actually payable to the Shareholders or other out-of-pocket otherwise for all reasonable costs and expenses reasonably incurred by him in fulfilling his duties hereunder, and the Investors and the Shareholders agree among themselves that such costs and expenses shall be borne pro rata among them according to the number of shares of Common Stock owned immediately after the Closing. The Shareholders agree that the Shareholder Representative may make reasonable requests for advances to cover such costs and expenses, and the Shareholders shall promptly make such advances. In no event shall iBIZ be liable for any costs or expenses of any nature incurred by the Shareholder Representative on demand in connection with its capacity as such. THE SHAREHOLDERS JOINTLY AND SEVERALLY, AGREE THAT THE SELLER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE SHAREHOLDERS FOR ACTION TAKEN OR OMITTED IN GOOD FAITH IN EXERCISING THE AUTHORITY GRANTED UNDER THIS SECTION. iBIZ shall not have any obligation or liability to indemnify or defend the Shareholder Representative in respect of any claim or liability asserted against the Shareholder Representative by any of the Shareholders or his successors or assigns. All determinations, decisions, actions taken and the like made by the Shareholder Representative pursuant to shall be final, conclusive and binding upon all the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any Shareholders and all liabilities, losses, damages, claims, costs persons claiming under or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselthrough them.
Appears in 1 contract
Shareholder Representative. (a) Each of By the Equityholders, by virtue of the adoption execution and delivery of this Agreement and thereby or any letter of transmittal, including counterparts thereof, each of the Merger by Shareholders of the Company Group will irrevocably constitute and appoint the Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) Representative as the true, exclusive true and lawful agent and attorney-in-fact (the “of such Shareholder Representative”), with full powers of the Equityholders receiving consideration hereunder substitution to act in the name, place and stead of such Shareholder with respect to the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with performance on behalf of such Shareholder under the terms and provisions of this Agreement, hereof and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions any transaction contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreementhereunder, including the power to: (i) act for such Shareholder with respect to compromise the Indemnification Escrow Amount; (ii) amend, modify or waive any indemnity claim provision of the Transaction Documents in any manner; (iii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative; (iv) act for such Shareholder with respect to all Purchase Price matters referred to herein; (v) incur any expenses, liquidate and withhold assets received on behalf of such Shareholder prior to their distribution to such Shareholder to the Company Shareholders and to transact matters extent of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents any amount that the Shareholder Representative deems necessary for payment of or appropriate as a reserve against expenses, and pay such expenses or deposit the same in connection an interest-bearing bank account established for such purpose, with the consummation of the transactions contemplated by this Agreement;
(iii) all such expenses reimbursed to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment out of expenses amounts received out of the Equityholders Indemnification Escrow Amount, or if no amounts are received, by reimbursement from the Shareholders in accordance with their pro rata percentage ownership; (vi) receive all notices, communications and apply deliveries hereunder on behalf of such funds in payment for such expenses;
Shareholder; (vvii) to do or refrain from doing any further act or deed on behalf of the Equityholders such Shareholder that the Shareholder Representative deems necessary or appropriate appropriate, in its the sole discretion of the Shareholder Representative, relating to the subject matter of this Agreement hereof as fully and completely as the Equityholders such Shareholder could do if personally presentpresent and acting and as though any reference to such Shareholder herein was a reference to the Shareholder Representative; and
or (viviii) direct, authorize or permit any third party paying agent, if applicable, to receive service take any of process in connection with any claims under this Agreementthe foregoing actions; provided, however, that the Shareholder Representative shall have no obligation to act, except as expressly provided herein.
(b) The appointment of the Shareholder Representative may shall be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parentdeemed coupled with an interest and shall be irrevocable, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction action of the Shareholder Representative as the act of each Shareholder in all matters referred to herein. The .
(c) In the event the Shareholder Representative may act resigns or ceases to function in reliance upon such capacity for any instructionreason whatsoever, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine then the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The successor Shareholder Representative shall act for be the Equityholders on all Person appointed by the Shareholders holding a majority of the matters set forth in this Agreement in the manner pro rata percentages held by all Shareholders.
(d) The Reserve Amount shall be used by the Shareholder Representative believes to be in satisfy the best interests obligations of the Equityholders Shareholder Representative set forth herein and consistent with to otherwise permit the Shareholder Representative to perform its obligations set forth herein. As soon as practicable after the date on which the final obligation of the Shareholder Representative under this AgreementAgreement has been discharged, but the Shareholder Representative shall not pay the Escrow Agent any amounts remaining in the Reserve Amount to be responsible to paid by Escrow Agent in accordance with the Equityholders for any Damages the Equityholders may suffer by the performance Escrow Agreement.
(e) In furtherance of its duties under this Agreementrole, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket incur such reasonable costs and expenses reasonably incurred as the Shareholder Representative may deem appropriate under the circumstances, which expenses may include hiring attorneys, accountants, appraisers and other professional advisors. Such expenses shall be reimbursed from the Reserve Amount from time to time upon demand by the Shareholder Representative on demand Representative.
(f) Nothing in connection with actions taken by the Transaction Documents is intended, and nothing in the Transaction Documents shall be interpreted as, imposing upon the Shareholder Representative, solely in its capacity as the agent and attorney-in fact for the Shareholders, any personal liability, personal economic obligation or personal guarantee in favor of any party to this Agreement or any third party. The Shareholder Representative pursuant shall have no liability to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action Shareholders with respect to actions taken or omitted to be taken by in its capacity as the Shareholder Representative. The Shareholders hereby agree to defend, indemnify, and hold the Shareholder Representative under harmless from and against any and all liability, damages, costs, and expenses, including attorneys’ fees and court costs, that the Shareholder Representative may incur as a result of this Agreement or in the Escrow Agreementcourse of performance of its services hereunder, other than for such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from liability as the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel incur because of its selection in the event of any dispute his (or question as to the meaning his representatives) gross negligence, fraud or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.intentional misconduct
Appears in 1 contract
Sources: Stock Purchase Agreement (Security National Financial Corp)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, Shareholders hereby appoints GF Private Equity GroupBori▇ ▇▇▇▇▇▇▇▇▇, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful ▇▇s agent and attorney-in-fact (fact, as the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place Representative for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this AgreementShareholders, to do or refrain give and receive notices and communications, to authorize payment to Parent of shares of Parent Common Stock and/or cash from doing all the Escrow Fund in satisfaction of claims by Parent, to object to such further acts payments, to agree to, negotiate, enter into settlements and thingscompromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to execute take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent and the Escrow Agent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such documents as removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall deem necessary not receive compensation for its services. Notices or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) communications to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that from the Shareholder Representative deems necessary shall constitute notice to or appropriate in connection with from the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as the Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior Shareholder Representative. After all claims for Losses by Parent set forth in Officer's Certificates delivered to the Effective Time. ParentEscrow Agent and the Shareholder Representative has been satisfied, or reserved against, the Surviving Corporation and Shareholder Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any other Person may conclusively and absolutely relyexpenses incurred in connection with the Shareholder Representative's representation hereby.
(c) A decision, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in all matters referred pursuant to herein. The Shareholder Representative this Agreement shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may act in reliance rely upon any instructionsuch decision, noticeact, certification, demand, consent, authorization, receipt, power consent or instruction of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in as being the best interests decision, act, consent or instruction of the Equityholders and consistent Shareholders. In addition, the Shareholder Representative, with the obligations under written concurrence of Messrs. Hill and Dancu, may agree to the amendment, extension or waiver of this AgreementAgreement pursuant to Sections 8.1 and 8.2 hereof. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, but act, consent or instruction of the Shareholder Representative shall not be responsible Representative.
(d) Subject to Parent's prior claims for indemnification against the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this AgreementEscrow Fund, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover receive payment for its reasonable and documented expenses therefrom, prior to any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant payments to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselShareholders.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Shareholder Representative. (a) Each The Representative is hereby authorized to serve as the exclusive representative of each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder Shareholders with respect to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be performed by the Shareholders.
(b) Each Shareholder, by execution of this Agreement, hereby irrevocably appoints the Representative as the exclusive agent, proxy, and attorney in fact for such Shareholder for all purposes of this Agreement and the best interests of contemplated transactions (i) to consummate the Equityholders contemplated transactions herein and consistent therein, (ii) to collect and pay such Shareholder’s expenses incurred in connection with the obligations negotiation and performance of this Agreement, the contemplated transactions (whether incurred prior to, on or after the date hereof or the Closing Date), (iii) to deduct and/or hold back any funds that may be payable to any Shareholders pursuant to the terms of this Agreement in order to pay any amount that may be payable by any Shareholders hereunder or thereunder, (iv) to resolve or settle any claim made by a Buyer Indemnitee, and, if necessary, amend this Agreement in order to give effect to any such resolution or settlement, (v) to endorse and deliver any certificates or instruments and execute such further instruments of assignment as Buyer shall reasonably request, (vi) to take all other actions to be taken by or on behalf of such Shareholder in connection herewith, (vii) to retain funds for reasonably anticipated expenses and Liabilities, and (viii) to do each and every act and exercise any and all rights that the Shareholders collectively are permitted or required to do or exercise under this Agreement, but the Shareholder Representative . This appointment and power of attorney shall be deemed to be coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be responsible subject to termination by operation of Law, whether by the Equityholders for incompetence or incapacity or bankruptcy of any Damages Shareholder or the Equityholders occurrence of any other event or events and the Shareholders may suffer not terminate this power of attorney with respect to any of the Shareholders or any of the Shareholders’ respective successors, assigns, beneficiaries, or heirs without the prior written consent of Buyer.
(c) Neither the Representative nor any agent employed by the Representative shall incur any liability to any Shareholders by virtue of the failure or refusal of the Representative relating to the performance of its duties under this Agreement, other than Damage arising from willful violation hereunder while acting in good faith or any of the law its omissions or gross negligence actions with respect thereto; it being understood that such exculpation applies only to actions or omissions in the performance of its duties under Representative’s capacity as the Representative pursuant to this Agreement Section 12.19 and that such exculpation shall not apply to, or limit the liability of, the Representative’s principal in his capacity as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionan indirect Shareholder hereunder. Each of the Equityholders agrees that the Shareholder The Representative shall be entitled to recover any indemnifiable amounts hereunder rely on the advice of counsel, public accountants or other out-of-pocket costs independent experts experienced in the matter at issue, and expenses reasonably incurred by any error in judgment or other act or omission of the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to such advice shall in no event subject the terms hereof (including Representative to liability to any Shareholder. The Representative shall not be liable to the hiring of legal counsel or advisors Shareholders, and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action act taken or omitted to be taken by pursuant to the Shareholder advice of counsel shall be conclusive evidence of such good faith. The Shareholders will indemnify and hold harmless the Representative under this Agreement or the Escrow Agreementfrom and against any and all Losses, other than such liabilities, lossesLiabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs or and expenses determined (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment and all amounts paid by a non-appealabe order or judgment the Representative to Buyer on behalf of a court or tribunal of competent jurisdiction the Company) (collectively, “Representative Losses”) arising out of or resulting from in connection with the Shareholder Representative’s execution and performance of this Agreement and the Ancillary Agreements to which the Representative is a party, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful violation misconduct of the law or Representative, the Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. In no event will the Representative be required to advance its own funds on behalf of the Shareholders or otherwise. The Shareholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement (and, for the avoidance of doubt, the restrictions and survival periods set forth in Article 9 are not intended to be applicable to the indemnities contained in this Section 12.19(c)).
(d) Each Shareholder hereby agrees that: (i) Buyer shall be entitled to deal exclusively with the Representative on all matters relating to this Agreement and to rely exclusively on any and all communications given or other actions taken by the Representative under this Agreement without any obligation to inquire of any Shareholder; (ii) notice to the Representative shall be deemed to be notice to the Shareholders (as applicable) for purposes of this Agreement and payment to the Representative shall be deemed to be payment to the Shareholders for purposes of this Agreement, and once Buyer has made payment to the Representative, Buyer shall have no further obligation with respect to such payment and the Shareholders shall look solely to the Representative for such payment; (iii) the power and authority of the Representative, as described in this Agreement, shall continue in force until all rights and obligations of the Shareholders under this Agreement shall have terminated, expired or been fully performed; and (iv) each Shareholder shall be liable for the actions or omissions of the Representative in its capacity as Representative.
(e) The Representative shall not be entitled to any fee, commission or other compensation for the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel services hereunder, but shall be entitled to the payment of all of its selection in reasonable expenses incurred as the event of any dispute Representative which shall be borne by the Shareholders pro rata according to each Shareholder’s Pro Rata Share. Upon the death, termination or question as to the meaning or construction of any resignation of the provisions hereof Representative (or its duties hereunderany successor), and it the Shareholders shall incur no liability appoint a successor agreed to by a majority in interest of the Equityholders in acting Shareholders determined in accordance with their respective Pro Rata Share. The Shareholders shall promptly notify Buyer in writing of any such appointment of a successor. The Representative may also be replaced by a successor appointed by the opinion and instructions Shareholders as agreed to by a majority in interest of such counselthe Shareholders determined in accordance with their respective Pro Rata Share upon not less than 10 days’ prior written notice to Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Barfresh Food Group Inc.)
Shareholder Representative. (ai) Each of In the Equityholders, by virtue of the adoption of this Agreement and thereby event that the Merger by the Company Shareholder Approvalis approved, hereby appoints GF Private Equity Groupeffective upon such vote, LLC and without further act of any shareholder, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have irrevocably constituted and be appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “"Shareholder Representative”)") for -------------------------- each Company Shareholder, of the Equityholders receiving consideration hereunder to act in the name, place for and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders Shareholders, to give and receive notices and communications, to authorize delivery to Parent of payments from the Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to transact matters take all actions necessary or appropriate in the judgment of litigation or other Proceedings;
the Shareholder Representative for the accomplishment of the foregoing. Such agency may be changed by the shareholders of the Company from time to time upon not less than thirty (ii30) days prior written notice to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents Parent; provided that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may not be removed or replaced only upon delivery unless a majority-in-interest of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior agree to such removal and to the Effective Timeidentity of the substituted agent. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction No bond shall be required of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineRepresentative, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible receive compensation for services as such. Notices or communications to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising or from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall constitute notice to or from each of the Company Shareholders or their permitted transferees.
(ii) The Shareholder Representative shall not be entitled to recover liable for any indemnifiable amounts act done or omitted hereunder or other out-of-pocket costs as Shareholder Representative while acting in good faith and expenses reasonably incurred by in the exercise of reasonable judgment. The Company Shareholders shall severally indemnify the Shareholder Representative and hold him or her harmless against any loss, liability or expense incurred without negligence or bad faith on demand in connection with actions taken by the part of the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from in connection with the acceptance or administration of the Shareholders Representative's duties hereunder, including the reasonable fees and expenses of any action taken or omitted to be taken legal counsel retained by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The parties have agreed that it is desirable to designate ▇.▇. ▇▇▇▇▇▇▇▇▇ to serve as the representative of the Equityholders, by virtue shareholders of Vianeta (the adoption "Shareholder Representative") for certain limited purposes as set forth herein. The approval of this Agreement and thereby the Merger by the Company shareholders of Vianeta will constitute ratification and approval of such designation. The Shareholder Approval, hereby appoints GF Private Equity Group, LLC Representative will have such power and shall have irrevocably constituted and appointed (and by its execution of this Agreement as authority necessary to carry out the functions assigned to the Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by Representative under this Agreement, in accordance with including the terms power and provisions authority:
(i) to enforce, defend and protect the rights and interests of the shareholders of Vianeta following the Closing under Article IX of this Agreement, and to act take any and all actions that the Shareholder Representative believes are necessary or appropriate under Article IX of this Agreement for and on behalf of the Equityholders in shareholders of Vianeta, including, without limitation, asserting, pursuing or defending any Proceeding involving this Agreementclaim by or against Parent or the Surviving Corporation, to do consenting to, compromising or refrain from doing all settling any such further acts and thingsclaim, and to execute all such documents as the Shareholder Representative shall deem necessary conducting negotiations with Parent or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;Surviving Corporation; and
(ii) to execute make, execute, acknowledge and deliver all amendments, waivers, ancillary such other agreements, stock powersnotices, certificates requests, instructions and documents other writings, and, in general, to do any and all things and to take any and all actions that the Shareholder Representative deems may consider necessary or appropriate proper in connection with carrying out the consummation responsibilities of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment under Article IX of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may will be removed or replaced only upon delivery of written notice entitled to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock engage such counsel, experts and other agents as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative deems necessary or proper in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuineconnection with performing its obligations hereunder, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to will be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer promptly reimbursed by the performance shareholders of its duties under this AgreementVianeta for all reasonable expenses, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs disbursements and expenses reasonably advances incurred by the Shareholder Representative in such capacity upon demand, pro rata based upon each such shareholder's share of Vianeta capital stock as of the Closing. Each shareholder of Vianeta shall indemnify and hold harmless the Shareholder Representative, pro rata based upon such shareholder's share of all Vianeta capital stock as of the Closing, from any and all Damages that are incurred by the Shareholder Representative as a result of actions taken, or actions not taken, by the Shareholder Representative herein, except to the extent that such Damages arise from the gross negligence or willful misconduct of the Shareholder Representative.
(c) All amounts received by the Shareholder Representative on demand in connection with behalf of the shareholders of Vianeta will be promptly paid by the Shareholder Representative to the shareholders of Vianeta, pro rata based upon such shareholder's share of Vianeta capital stock as of the Closing; provided, however, that the Shareholder Representative will be entitled to set off any amounts payable to the Shareholder Representative under Section 10.13(b) against amounts otherwise payable to shareholders of Vianeta pursuant to this Section 10.13(c).
(d) Holdings, Parent and Surviving Corporation shall have the right to rely upon all actions taken or not taken by the Shareholder Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the terms hereof shareholders of Vianeta.
(including the hiring of legal counsel or advisors and the incurring of legal fees and other costse) from If at any time the Shareholder Representative Expense Fund. In resigns, dies or becomes incapable of acting, the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each shareholders of a majority of Vianeta common stock and a majority of Vianeta preferred stock as of the Equityholders severally Closing shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted choose another holder to be taken by act as the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersThe shareholders, by virtue of their approval of the adoption of this Agreement and thereby the Merger by the Company Shareholder ApprovalAgreement, hereby appoints GF Private Equity Group, LLC and shall will be deemed to have irrevocably constituted and appointed appointed, effective as of the Effective Time, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (together with his or its permitted successors, the "SHAREHOLDER REPRESENTATIVE"), as their true and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and -------------------------- lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders enter into any agreement in connection with the transactions contemplated by this Agreement and any transactions contemplated by the Escrow Agreement, in accordance with to exercise all or any of the powers, authority and discretion conferred on him or it under any such agreement, to waive any terms and provisions conditions of this Agreementany such agreement (other than the Merger Consideration), to give and receive notices on their behalf and to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or proceeding for which the Parent or the Merger Sub may be entitled to indemnification and the Shareholder Representative agrees to act as, and to act on behalf of undertake the Equityholders in any Proceeding involving this Agreementduties and responsibilities of, to do or refrain from doing all such further acts agent and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Timeattorney-in- fact. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, This power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do sois coupled with an interest. The Shareholder Representative shall act not be liable for the Equityholders on all of the matters set forth any action taken or not taken by him or it in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent connection with the his or its obligations under this AgreementAgreement (i) with the consent of shareholders who, but as of the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance date of its duties under this Agreement, other than Damage arising from willful violation owned a majority in number of the law outstanding shares of the Company Common Stock or (ii) in the absence of his or its own gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdictionwilful misconduct. Each of the Equityholders agrees that If the Shareholder Representative shall be entitled unable or unwilling to recover any indemnifiable amounts hereunder serve in such capacity or other out-of-pocket costs and expenses reasonably incurred by if the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each shareholders of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted Company otherwise desire to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from replace the Shareholder Representative’s willful violation , his or its successor shall be named by those persons holding a majority of the law or gross negligence in shares of the performance Company Common Stock outstanding at the Effective Time who shall serve and exercise the powers of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The Shareholder Representative is hereby irrevocably appointed to act as the agent on behalf of the EquityholdersHolders (such appointment being affirmed pursuant to the Lock Up Agreements and the Lock Up and Retention Agreements being delivered concurrently herewith as required by Section 6.12), by virtue and the Shareholder Representative hereby accepts such appointment. Purchaser shall be entitled to deal exclusively with the Shareholder Representative on all matters relating to the Registration Statement pursuant to Section 6.6(e), indemnification pursuant to Article IX and the Escrow Agreement pursuant to its terms, and shall be entitled to rely conclusively (without further evidence of the adoption any kind whatsoever) on any document executed or purported to be executed on behalf of this Agreement and thereby the Merger any Holder by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Groupand on any other action taken or purported to be taken on behalf of any Holder by the Shareholder Representative, LLC hereby accepts its appointmentas fully binding upon such Holder. If the Shareholder Representative shall die, liquidate, dissolve or otherwise be unable (whether as a result of a disability or otherwise) or unwilling to fulfill the responsibilities as agent of the trueHolders, exclusive and lawful agent and attorney-in-fact then Holders representing a majority in interest of the amount of shares of Purchaser Common Stock then held in the Escrow Fund shall, within ten (10) days after notice from Purchaser of such event, appoint a successor representative and, promptly thereafter, shall notify Purchaser of the identity of such successor. Any such successor shall become the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions ” for purposes of this Agreement. If for any reason there is no Shareholder Representative at any time, and all references herein to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate be deemed to refer to Holders representing a majority in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf interest of the Company Shareholders and to transact matters amount of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that shares of Purchaser Common Stock then held in the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementEscrow Fund.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice shall have reasonable access to the Surviving Corporation by information about the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to and its Subsidiaries and the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction reasonable assistance of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power Company’s and its Subsidiaries’ officers and employees for purposes of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, performing its duties and may assume that such person has been properly authorized to do soexercising its rights hereunder. The Shareholder Representative shall act not have any liability for the Equityholders on all of the matters set forth any action taken or suffered by it or omitted hereunder as Shareholder Representative while acting in this Agreement good faith and in the manner the exercise of reasonable judgment. The Shareholder Representative believes to be may, in all questions arising hereunder, rely on the best interests advice of the Equityholders counsel and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable to the Equityholders anyone for any Damages the Equityholders may suffer anything done, omitted or suffered in good faith by the performance of its Shareholder Representative based on such advice. The Shareholder Representative undertakes to perform such duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence and only such duties as are specifically set forth in the performance of its duties under this Agreement as determined by a non-appealable order and the Escrow Agreement and no implied covenants or judgment of a court or tribunal of competent jurisdiction. Each of obligations shall be read into this Agreement against the Equityholders agrees that the Shareholder Representative.
(c) The Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and seek reimbursement of its reasonable expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by its obligations under this Agreement, the Escrow Agreement and related agreements, including, but not limited to, reasonable fees and costs of counsel, accountants and other third parties (the “Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) Expenses”), from the Shareholder Representative Expense Fund. In the event Escrow Fund or, if such recovery fund is precluded or unattainable insufficient to pay for over thirty days after demand thereof such expenses, from the Shareholder Representative Expense FundHolders jointly and severally, each with a right of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by contribution on a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselpro rata basis.
Appears in 1 contract
Sources: Agreement and Plan of Amalgamation (Palmsource Inc)
Shareholder Representative. (a) Each of the Equityholders, by By virtue of the adoption of this Agreement Agreement, and thereby without any further action of any of the Merger by Shareholders, including, for the Company Shareholder Approvalavoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients, Phantom Award Holders or the Company, Gulliver ▇▇▇▇▇▇▇ is hereby appoints GF Private Equity Groupirrevocably nominated, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the trueexclusive representative, exclusive agent and true and lawful agent and attorney-in-fact of each of the Shareholders, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders (the “Shareholder Representative”), with full power of substitution by the Equityholders receiving consideration hereunder Shareholders or, following the Closing, by the Founders (and, if so substituted, the Shareholder Representative and/or the Founders will promptly notify Parent of such substitution) to act in the name, place and stead of the Equityholders in connection Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders with respect to this Agreement, as the same may be from time to time amended, and with respect to the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and hereby; to act on behalf as “purchaser representative” (as defined in Rule 501(i) of Regulation D under the Equityholders in Securities Act) for any Proceeding involving this AgreementShareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient or Phantom Award Holder that is not an Accredited Investor; and to do or refrain from doing all such further acts and things, and to execute all such documents (including any amendments to this Agreement and any requests, notices, waivers and consents), in each case as the Shareholder Representative shall deem necessary necessary, appropriate or appropriate desirable in connection with the transactions this Agreement, any agreements contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise Agreement or any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
hereby or thereby; and to enforce and protect (iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf enforcing) the rights and interests of the Equityholders that Shareholders, including, for the Shareholder Representative deems necessary avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders (including by asserting or appropriate defending any claim, consenting to, compromising or settling any such claim or conducting any negotiation regarding any such claim) arising out of or under or in its sole discretion any manner relating to the subject matter of this Agreement, any agreements contemplated by this Agreement as fully and completely as or any of the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementtransactions contemplated hereby or thereby.
(b) The Shareholder Representative may be removed All decisions, actions (or replaced only upon delivery failures to take an action or omissions of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parentan action), the Surviving Corporation notices, instructions and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction communications of the Shareholder Representative in all matters referred shall be final, binding and conclusive on the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders and may be relied upon by Parent, Merger Sub and their Affiliates as the decisions, actions (or failures to hereintake an action or omissions of an action), notices, instructions and communications of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders. The Shareholder Representative may act in reliance upon and each Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder shall be entitled to disregard any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney notices or other writing delivered to it communications given or made by any other person other than itself without being required to determine Shareholder, including, for the authenticity avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder not given or validity thereof or made through the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soRepresentative. The Shareholder Representative shall act not be liable to any of the Shareholders, including, for the Equityholders on all avoidance of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests doubt, each holder of the Equityholders unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Phantom Award Holders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law act done or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred omitted by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative good faith pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs any agreement ancillary hereto or expenses determined any mistake of fact or Law unless caused by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s knowing and material willful violation of the law or gross negligence misconduct in the performance of its duties under this Agreement. The Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders will indemnify, defend and hold harmless the Shareholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Shareholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the knowing and material willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders the amount of such indemnified Representative Loss to the extent attributable to such knowing and material willful misconduct. If not paid directly to the Shareholder Representative by the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders, any such Representative Losses may be recovered by the Shareholder Representative from the Shareholder Representative Expense Amount; provided, that while this Section 9.16(b) allows the Shareholder Representative to be paid from the aforementioned source, this does not relieve the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance any of his own funds on behalf of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this Section 9.16. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the termination of this Agreement. In taking any action or refraining from taking any action whatsoever the Shareholder Representative shall be protected in relying upon any notice, paper or other document reasonably believed by it to be genuine, or upon any evidence reasonably deemed by it to be sufficient. The Shareholder Representative may consult with legal counsel in connection with its duties and shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel. Parent, Merger Sub and their respective Affiliates shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Shareholder Representative.
(c) The Shareholders, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders will not receive any interest or earnings on the Shareholder Representative Expense Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of principal of the Shareholder Representative Expense Amount other than as a result of its selection knowing and material willful misconduct. The Shareholder 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 any dispute or question bankruptcy. The Shareholder Representative Expense Amount shall be retained by the Shareholder Representative for such time as the Shareholder Representative shall determine in his sole discretion. Any amounts from the Shareholder Representative Expense Amount that remain unused through the date determined by the Shareholder Representative pursuant to the meaning or construction of any of the provisions hereof or its duties hereunder, and it preceding sentence shall incur no liability be distributed to the Equityholders Shareholders in acting accordance with their ownership interests in the Company and entitlement to consideration in accordance with the opinion terms of this Agreement. For tax purposes, the Shareholder Representative Expense Amount will be treated as having been received and instructions voluntarily set aside by the Shareholders, including, for the avoidance of such counseldoubt, each holder of unvested Restricted Shares, Option Holders, Transaction Bonus Unit Recipients and Phantom Award Holders at the time of Closing.
(d) 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 Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient and Phantom Award Holder and (ii) shall survive the consummation of the transactions contemplated hereby.
(e) Any Action against Parent or any of its subsidiaries that is brought by or on behalf of a Shareholder, including, for the avoidance of doubt, each holder of unvested Restricted Shares, Option Holder, Transaction Bonus Unit Recipient or Phantom Award Holder, either individually or as a group, with respect to this Agreement or the transactions contemplated by this Agreement may be brought only by the Shareholder Representative and/or either Founder.
Appears in 1 contract
Shareholder Representative. (a) Each The Employers written notice delivered to the Employers Shareholders, and the resolutions adopted by the required number of Employers Shareholders to approve the Merger, whether at a special meeting of the EquityholdersEmployers Shareholders or by written consents signed by the Employers Shareholders, shall state that by virtue voting in favor of the adoption of this Agreement Merger, each Employers Shareholder approves and thereby appoints the Merger by Person designated in the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement resolutions as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact and agent for and on behalf of the Employers Shareholders, both individually and collectively (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated power and authority to take all actions and make all decisions required or permitted by this Agreement, in accordance with the Shareholder Representative under the terms and provisions of this Agreement, the Escrow Agreement, and all other documents, exhibits, and agreements related to act such agreements or the Merger, including (i) authorization of the release or delivery to any Eastern Indemnified Person of all or any portion of the Escrow Holdback in satisfaction of indemnification claims for which such Person is entitled to indemnification under Article VIII; (ii) agreeing to, negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to, any claim for indemnification under Article VIII; (iii) litigation, resolution, settlement or compromise of any claim for indemnification made by any Eastern Indemnified Person pursuant to Article VIII; (iv) receiving all notices on behalf of each Employers Shareholder in connection with any claims or matters under this Agreement or the Equityholders Escrow Agreement; and (v) the taking of such other actions that the Shareholder Representative determines in his judgment are necessary in connection with, or for the effective exercise of, any Proceeding involving of the foregoing powers and authority. Each Employers Shareholder’s appointment of the Shareholder Representative as provided in this Section 5.16 shall be deemed coupled with an interest surviving the death or disability of such Employers Shareholder to the extent applicable.
(b) Each Employers Shareholder, by the approval of the Merger, shall be bound by all actions taken and documents executed by the Shareholder Representative in connection with this Agreement, to do or refrain from doing all such further acts and thingsthe Escrow Agreement, and all other documents, exhibits and agreements related to execute all such documents as agreements or the Merger. Eastern, its Affiliates and any Eastern Indemnified Person shall be entitled to rely on any such action or document taken or executed by the Shareholder Representative.
(c) As between the Shareholder Representative shall deem necessary or appropriate in connection with and the transactions contemplated by this Agreement, including the powerEmployers Shareholders:
(i) to act for In exercising the Equityholders with regard to matters pertaining to indemnification referred to power and authority of the Shareholder Representative as provided in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable to any Employers Shareholder in the absence of recklessness or willful misconduct on the part of the Shareholder Representative.
(ii) The Shareholder Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to the Equityholders for Shareholder Representative by any Damages the Equityholders may suffer Employers Shareholder, or any other evidence determined by the performance of its duties under this AgreementShareholder Representative to be reliable, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that and the Shareholder Representative shall be entitled to recover act on the advice of counsel selected by the Shareholder Representative.
(iii) The Shareholder Representative shall be fully justified in failing or refusing to take any indemnifiable amounts hereunder action under this Agreement, the Escrow Agreement or any other outdocument relating to the Merger unless the Shareholder Representative shall have received such advice or concurrence of such Employers Shareholders as the Shareholder Representative determines appropriate or the Shareholder Representative shall have been expressly indemnified to the Shareholder Representative’s satisfaction by the Employers Shareholders severally (based upon their respective Pro Rata Shares), against all liability and expense (including reasonable attorney fees) that the Shareholder Representative may incur by reason of taking or continuing to take any such action.
(iv) The Shareholder Representative shall be entitled to retain professional advisors, including accountants and legal counsel, and to incur such other expenses as the Shareholder Representative determines to be necessary or appropriate in connection with acting as the attorney-ofin-pocket costs fact and agent on behalf of the Employers Shareholders as authorized under Section 5.16(a), and all such professional and other fees and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken acting in such capacity shall be borne by the Employers Shareholders severally in proportion to their respective Pro Rata Shares.
(v) The Employers Shareholders shall indemnify the Shareholder Representative pursuant Representative, severally in proportion to the terms hereof their respective Pro Rata Shares, against all losses, liabilities, damages and expenses (including the hiring of legal counsel or advisors and the incurring of legal fees and other costsreasonable attorney fees) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative in such capacity relating to or arising out of actions or resulting from any failures to take action taken pursuant to or omitted to be taken by in connection with this Agreement, the Shareholder Representative under this Escrow Agreement or any other document relating to the Escrow AgreementMerger, other than except to the extent such losses, liabilities, losses, damages, claims, costs or damages and expenses determined by are incurred as a non-appealabe order or judgment result of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s recklessness or willful violation misconduct.
(vi) Each Person appointed as the Shareholder Representative shall serve in such capacity until the earlier of such Person’s resignation or removal (with or without cause) by Employers Shareholders having more than 50% of the law total Pro Rata Shares (the “Majority Employers Shareholders”). Upon the resignation or gross negligence removal of a Person as the Shareholder Representative, the Majority Employers Shareholders shall appoint another Person to serve in such capacity. Each Person appointed as a Shareholder Representative shall accept such position in writing.
(d) Prior to the Effective Time, the Majority Employers Shareholders shall give Eastern written notice of the Person initially appointed as the Shareholder Representative, together with such Person’s notice address, telephone number and telecopy number. Promptly after any change of the Shareholder Representative, the Majority Employers Shareholders shall give Eastern written notice setting forth the name, notice address, telephone number and telecopy number of the new Shareholder Representative. Until notified in writing of such a change, Eastern shall be entitled to assume that the most recent incumbent Shareholder Representative of which Eastern has written notice is the duly authorized Shareholder Representative.
(e) In exercising the Shareholder Representative’s power and authority as provided in this Agreement, the Shareholder Representative shall not be liable to Eastern or any other Eastern Indemnified Person in the performance absence of its duties recklessness or willful misconduct on the part of the Shareholder Representative; provided, however, that nothing contained in this Section 5.16 shall in any way limit or prejudice the enforcement by Eastern against the Employers Shareholders or the Escrow Holdback of Eastern’s rights under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in , the event of Escrow Agreement or any dispute or question as other document relating to the meaning or construction of any of the provisions hereof or its duties hereunderMerger, upon and it shall incur no liability subject to the Equityholders in acting in accordance with the opinion terms and instructions conditions of each such counselagreement or document.
Appears in 1 contract
Sources: Merger Agreement (Eastern Insurance Holdings, Inc.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by Shareholders agree to appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”)fact, of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem for and on behalf of such Shareholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any such Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement, the Escrow Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in connection with the transactions contemplated by this Agreement, including judgment of the power:
(i) to act Shareholder Representative for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf accomplishment of the Company Shareholders and to transact matters of litigation foregoing or other Proceedings;
(ii) specifically mandated by the terms of this Agreement. Such agency may be changed by such Shareholders from time to execute and deliver all amendmentstime upon not less than 30 days prior written notice to Purchaser; provided, waivershowever, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation may not be removed unless holders of a two-thirds interest of the transactions contemplated Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by this Agreement;
(iii) to execute the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary shall not receive any compensation for its services. Notices or appropriate, whether prior to, at communications to or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary shall constitute notice to or appropriate in its sole discretion relating to from the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementShareholders.
(b) The Shareholder Representative may shall not be removed liable for any act done or replaced only upon delivery omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of written notice reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Surviving Corporation Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Company Shareholders holding at least a majority Shareholder Representative (“Shareholder Representative Expenses”). Following the termination of outstanding shares the Escrow Period, the resolution of Company Common Stock as all Unresolved Claims and the satisfaction of immediately all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Effective TimeShareholders. ParentA decision, act, consent or instruction of the Surviving Corporation Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 and any other Person Section 10.3 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Purchaser may conclusively and absolutely rely, without inquiry, rely upon any actionsuch decision, decisionact, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may act in reliance upon Escrow Agent and Purchaser are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption The approval of this Agreement and thereby the Merger by the Company Shareholders shall constitute their ratification and approval of the appointment of the Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of Representative pursuant to this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving Indemnifying Parties, which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):
(i) for purposes of this AgreementArticle VII, to do or refrain give and receive notices and communications, to authorize delivery to any Indemnified Party of cash from doing all the Escrow Fund in satisfaction of claims by an Indemnified Party, to object to such further acts deliveries, to agree to, negotiate, enter into settlements and thingscompromises of, and bring suit and comply with Orders and awards of courts with respect to such claims, and to execute take all such documents as the Shareholder Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including judgment of the power:
(i) to act Shareholder Representative for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf accomplishment of the Company Shareholders and to transact matters of litigation or other Proceedingsforegoing;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates such waivers and documents that the Shareholder Representative deems necessary or appropriate consents in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated by this Agreementhereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to execute enforce and deliver protect the rights and interests of all amendments and waivers Indemnifying Parties arising out of or under or in any manner relating to this Agreement that Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative deems believes are necessary or appropriate, whether prior to, at or after appropriate under this Agreement for and on behalf of the ClosingIndemnifying Parties;
(iv) to receive funds for the payment of expenses refrain from enforcing any right of the Equityholders and apply Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such funds failure to act on the part of the Shareholder Representative, except as otherwise provided in payment for this Agreement, shall be deemed a waiver of any such expenses;right or interest by the Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do or refrain from doing any further act or deed on behalf of the Equityholders and all things and to take any and all action that the Shareholder Representative deems necessary or appropriate Representative, in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process absolute discretion, may consider necessary or proper or convenient in connection with any claims under or to carry out the transactions contemplated by this AgreementAgreement and all other documents contemplated hereby.
(b) The Shareholder Representative may be removed or replaced only resign upon delivery of written notice to the Surviving Corporation by Corporation, with or without cause, and the Company Shareholders holding at least holders representing a majority of outstanding shares the Pro Rata Portions shall appoint a successor. Additionally, the Shareholder Representative may be changed by the Indemnifying Parties upon ten (10) days’ prior written notice to Parent, signed by the holders representing a majority of Company Common Stock the Pro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of immediately prior any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Indemnifying Parties.
(c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and any act done or omitted pursuant to the Effective Time. Parentadvice of counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decision, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decisionact, consent or instruction of the Shareholder Representative in all with respect to the matters referred regarding the Escrow Fund contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to herein. The Shareholder Representative may act in reliance upon any instructionSection 8.3 and Section 8.4 hereof, notice, certification, demand, consent, authorization, receipt, power shall constitute a decision of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in Indemnifying Parties and shall be final, binding and conclusive, and the manner Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative believes as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties 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 Shareholder Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be in delivered to, performed by, or asserted by the best interests of Indemnifying Parties regarding the Equityholders and consistent with Escrow Fund shall be delivered to, performed by or asserted by the obligations under this Agreement, but Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that and hold the Shareholder Representative shall be entitled to recover harmless against any indemnifiable amounts hereunder loss, liability or other expense incurred without gross negligence, willful misconduct or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including any out-of-pocket costs and the reasonable fees and expenses reasonably incurred of any legal counsel retained by the Shareholder Representative on demand in connection (“Shareholder Representative Expenses” and together with actions taken Earnout Representative Expenses, the “Representative Expenses”). Following the termination of the Escrow Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from this Agreement, the Shareholder Representative Expense Fund. In may seek recovery of any unpaid Shareholder Representative Expenses from the event Indemnifying Parties according to their respective Pro Rata Portions.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such recovery is precluded or unattainable for over thirty days after demand thereof from other professional and expert assistance, and maintain such records, as the Shareholder Representative Expense Fundmay deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, each with the fees and expenses of the Equityholders severally shall indemnify such engagements and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the assistance considered Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this AgreementExpenses. The Shareholder Representative may consult in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the reasonable assistance of the Surviving Corporation’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) by individuals the Shareholder Representative shares such information with legal counsel and shall keep Parent promptly informed of its selection those individuals the Shareholder Representative shares such information with.
(i) At the Effective Time, Parent shall deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the event of any dispute or question as Representative Fund to the meaning successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or construction of any the Shareholder Representative, as applicable and in each case on behalf of the provisions hereof or its duties hereunderIndemnifying Parties, and it shall incur no liability for any Representative Expenses actually incurred prior to the Equityholders in acting determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the opinion and instructions Earnout Representative shall distribute such portion of the Representative Fund which has not been used to reimburse the Earnout Representative or the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as if such counseldistribution was an Escrow Release.
Appears in 1 contract
Shareholder Representative. (a) Each The Healthtrac Stockholders hereby appoint D▇. ▇▇▇▇▇ ▇. Fries to act as the Shareholder Representative and authorize and direct the Shareholder Representative to (i) take any and all actions (including without limitation executing and delivering any documents, receiving notices of claims, incurring any costs and expenses for the Equityholders, account of Healthtrac and the Healthtrac Stockholders and making any and all determinations) which may be required or permitted by virtue of the adoption of this Agreement and thereby to be taken by Healthtrac, the Merger by Healthtrac Stockholders or the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group(ii) exercise such other rights, LLC hereby accepts its appointment) power and authority as are authorized, delegated and granted to the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration Representative hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated hereby and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any actions taken, exercises of rights, power or authority, and any decision or determination made by this Agreementthe Shareholder Representative consistent herewith shall be absolutely and irrevocably binding on Healthtrac and each Healthtrac Stockholder as if such party personally had taken such action, exercised such rights, power or authority or made such decision or determination in accordance with the terms and provisions such party's individual capacity. Notwithstanding any other provision of this Agreement, if the Closing occurs, no Indemnifying Party shall have any right under this Agreement or otherwise to institute any suit, action or proceeding against VDOT or defend any action brought by VDOT or any third party with respect to any matter covered by Article 9, any such right being irrevocably and exclusively delegated to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with Representative. D▇. ▇▇▇▇▇ ▇. Fries hereby acknowledges and accepts the transactions contemplated by this Agreement, including the power:
(i) foregoing authorization and appointment and agrees to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the serve as Shareholder Representative deems necessary or appropriate in connection accordance with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative shall serve as Shareholder Representative until his or her resignation, removal from office, incapacity or death or the expiration of his or her term of office (which shall not, in any event, expire before the expiration of the Indemnity Period); provided, however, that the Shareholder Representative shall not have the right to resign without (i) prior written notice to each Indemnifying Party and VDOT, and (ii) choosing a successor reasonably satisfactory to VDOT to serve until a successor is elected by the Indemnifying Parties. A Shareholder Representative may be removed or replaced only upon delivery of at any time and a successor representative, reasonably satisfactory to VDOT, may be appointed, pursuant to written notice to the Surviving Corporation action by the Company Shareholders holding at least a majority of outstanding shares the Indemnifying Parties. VDOT hereby consents to any Healthtrac Stockholder serving as Shareholder Representative, provided that VDOT first receive the notice referred to above. Any successor to a Shareholder Representative shall, for purposes of Company Common Stock this Agreement and the Escrow Agreement, be deemed to be, from the time of appointment, the "Shareholder Representative" for the relevant time period, and from and after such time, the term "Shareholder Representative" as used herein and therein shall be deemed to refer to such successor. No appointment of immediately prior a successor shall be effective unless such successor agrees in writing to be bound by the terms of this Agreement and the Escrow Agreement.
(c) The Shareholder Representative shall be permitted to retain counsel, consultants and other advisors and the fees and expenses related thereto shall be paid by the Indemnifying Parties.
(d) Notwithstanding any notice received by VDOT to the Effective Time. Parentcontrary (except any notice of the appointment of a successor Shareholder Representative approved by VDOT in accordance with this Section 9.5, VDOT (i) shall be fully protected in relying upon and shall be entitled to rely upon, shall have no liability to any Indemnifying Party with respect to, and shall be indemnified by the Surviving Corporation Indemnifying Parties from and against all liability arising out of (any other Person may conclusively such indemnifiable amounts constituting Losses) actions, decisions and absolutely rely, without inquiry, upon any action, decision, consent or instruction determinations of the Shareholder Representative in and (ii) shall be entitled to assume that all matters referred to herein. The actions, decisions and determinations of the Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it are fully authorized by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. Indemnifying Parties.
(e) The Shareholder Representative shall act not be liable to the Indemnifying Parties for the Equityholders on all performance of any act or the matters set forth failure to act so long as he acted or failed to act in this Agreement good faith in what he reasonably believed to be the manner the Shareholder Representative believes scope of his authority and for a purpose which he reasonably believed to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselIndemnifying Parties.
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement Shareholder hereby irrevocably appoints and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement designates ▇▇▇▇▇▇▇ ▇▇▇▇ as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent his or her representative and attorney-in-fact (the “"REPRESENTATIVE).
(b) The Shareholders hereby authorize the Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of any Shareholder Representative”)to consummate the transactions contemplated hereby; (ii) to give and receive all notices required or permitted under this Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Equityholders receiving consideration Shareholders by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Shareholders will select another representative to act in fill each such vacancy and such substituted representative will be irrevocably appointed and designated the nameRepresentative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, place including, without limitation, any agreement between the Representative and stead the Company relating to the waiver of any condition to the obligations of any Shareholder to consummate the transaction contemplated hereby, will be binding upon all of the Equityholders Shareholders, and no Shareholder will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Shareholders agree that: The Company will be able to rely conclusively on the instructions and decisions of the Representative as to any actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Company for any action taken by the Company in reliance upon the instructions or decisions of the Representative; all actions, decisions and instructions of the Representative will be conclusive and binding upon all of the Shareholders, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative; the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement, in accordance with ; and the terms and provisions of this AgreementSection 1.7 will be binding upon the executors, heirs, legal representatives and successors of each Shareholder, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth references in this Agreement in to a Shareholder will mean and include the manner successors to the Shareholder Representative believes to be in the best interests rights of the Equityholders and consistent with the obligations under this AgreementShareholders hereunder, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative whether pursuant to testamentary disposition, the terms hereof (including the hiring laws of legal counsel descent and distribution or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselotherwise.
Appears in 1 contract
Sources: Merger Agreement (Nicollet Process Engineering Inc)
Shareholder Representative. (a) Each Sybll ▇. ▇▇▇▇▇▇ is hereby appointed as the agent and attorney in fact of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents Indemnifying Parties as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim and on behalf of the Company Shareholders Indemnifying Parties to give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to transact matters take all other actions that are either (i) necessary or appropriate in the judgment of litigation the Shareholder Representative for the accomplishment of the foregoing or other Proceedings;
(ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Company Indemnifying Parties from time to execute and deliver all amendmentstime upon not less than ten (10) days prior written notice to Parent; provided, waivershowever, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation may not be removed unless holders of a majority-in-interest of the transactions contemplated Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by this Agreement;
(iii) the holders of a majority-in-interest of the Escrow Fund. No bond shall be required of the Shareholder Representative. Notices or communications to execute and deliver all amendments and waivers to this Agreement that or from the Shareholder Representative deems necessary shall constitute notice to or appropriate, whether prior to, at or after from the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this AgreementCompany Indemnifying Parties.
(b) The Shareholder Representative may shall not be removed paid any fee for services to be rendered hereunder. All reasonable fees and expenses incurred by the Shareholder Representative in performing her duties hereunder or replaced only upon delivery of written notice to under the Surviving Corporation Escrow Agreement shall be borne severally by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior Indemnifying Parties, based on their Pro Rata Portion; provided, however, that, to the Effective Time. Parentextent practical, the Surviving Corporation Shareholder Representative shall deduct such fees and expenses from the amounts otherwise distributable to the Company Indemnifying Parties under this Agreement. In particular and without limitation, the Shareholder Representative shall hold back the sum of seventy-five thousand Dollars ($75,000) from amounts otherwise distributable to the Company Indemnifying Parties under this Agreement (the “Holdback Amount”), which may be used to pay transaction and other administrative expenses, in addition to other fees and expenses incurred in her performance of her duties and responsibilities hereunder. At such time that the Shareholder Representative believes, in her sole discretion, that all or any portion of the Holdback Amount is no longer required for the above uses, the Shareholder Representative shall distribute such portion of the Holdback Amount to the Company Indemnifying Parties based on their Pro Rata Portion.
(c) The Shareholder Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholder Representative. Each of the Company Indemnifying Parties agrees that the Shareholder Representative shall have the full power, authority and right to perform, do and take any and all actions it deems necessary or advisable to carry out the purposes of this Agreement. In particular, but not by way of limitation, the Shareholder Representative has the power to (i) make and carry out decisions under this Agreement on behalf of each Shareholder and to sign documents and make filings on behalf of each Company Indemnifying Parties as if such Company Indemnifying Parties had itself signed or filed such document, (ii) retain attorneys, accountants and other Person may conclusively professional service providers to assist and absolutely advise it with respect to its duties hereunder, (iii) give and receive any notices and settle any disputes under this Agreement, (iv) agree to, negotiate and enter into settlements and compromises, demand dispute resolution, and comply with orders of courts and awards of arbitrators with respect to this Agreement, and (v) give consents and instructions or contest any claims with respect to this Agreement.
(d) The Shareholder Representative shall be entitled to rely, without inquiryand shall be fully protected in relying, upon any statements furnished to it by any Company Shareholder, Company Optionholder, Parent, Sub, or any other evidence deemed by the Shareholder Representative to be reliable. The Shareholder Representative shall be fully justified in failing or refusing to take any action under this Agreement unless it shall have received such advice or concurrence of the Company Indemnifying Parties as it deems appropriate or unless it shall have been expressly indemnified to its satisfaction by the Shareholders severally based on their Pro Rata Portion against any and all liability and expense that it may incur by reason of taking or continuing to take any such action.
(e) The Shareholder Representative shall not be liable for any error of judgment, or any action taken or omitted to be taken hereunder, except in the case of its bad faith, gross negligence or willful misconduct, as determined by a court of competent jurisdiction. The Shareholder Representative shall be entitled to consult with counsel of its choosing and shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel. The Company Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund, severally based on their Pro Rata Portion, shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, Liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expense”). Following the termination of the Escrow Period and the resolution of all pending claims made by the Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover the Shareholder Representative Expenses from any remaining portion of the Escrow Fund prior to any distribution to the Company Indemnifying Parties and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. Upon receipt of such certificate, the Escrow Agent shall pay such Shareholder Representative Expenses to the Shareholder Representative. Parent agrees to consent in writing to the distribution, to the extent permitted herein, if so requested by the Escrow Agent. Notwithstanding the foregoing, the Shareholder Representative’s right to recover Shareholder Representative Expenses shall not prejudice Parent’s right to recover the full amount of indemnifiable Losses that Parent is entitled to recover from the Escrow Fund.
(f) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Company Indemnifying Parties and shall be final, binding and conclusive upon the Company Indemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative in all matters referred to hereinas being the decision, act, consent or instruction of the Company Indemnifying Parties. The Shareholder Representative may act in reliance upon Escrow Agent and Parent are hereby relieved from any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered Liability to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Person for any Damages the Equityholders may suffer acts done by the performance them in accordance with such decision, act, consent or instruction of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Shareholder Representative. (a) Each The parties hereto have agreed that it is desirable to designate Sightline Partners LLC to serve, commencing as of the EquityholdersEffective Time, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive true and lawful representative, agent and attorney-in-fact of each and all of the holders of the Company Stock, Options and Warrants (the “"Shareholder Representative”), ") for certain limited purposes as set forth herein. The adoption of this Agreement by the holders of the Equityholders receiving consideration hereunder to act in Company Stock shall constitute ratification and approval of such designation, and the name, place irrevocable constitution and stead appointment of the Equityholders in connection with Shareholder Representative as set forth herein. The Shareholder Representative shall have such power and authority necessary to carry out the transactions contemplated by functions assigned to the Shareholder Representative under this Agreement and the Escrow Agreement, in accordance with including but not limited to the terms power and provisions of this authority:
(i) to execute and deliver the Escrow Agreement, and to act enter into any amendments, modifications and/or waivers in respect thereof;
(ii) to enforce, defend and protect the rights and interests of the holders of the Company Stock following the Closing under this Article VIII and under the Escrow Agreement, and to take any and all actions that the Shareholder Representative believes are necessary or appropriate under this Article VIII and under the Escrow Agreement for and on behalf of the Equityholders holders of the Company Stock, including, without limitation, asserting, pursuing or defending any claim by or against the Parent or the Surviving Corporation, consenting to, compromising or settling any such claim, and conducting negotiations with the Parent or Surviving Corporation; and
(iii) to make, execute, acknowledge and deliver all such other agreements, notices, requests, instructions and other writings, and, in any Proceeding involving this Agreementgeneral, to do or refrain from doing any and all such further acts and things, things and to execute take any and all such documents as actions that the Shareholder Representative shall deem may consider necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in carrying out its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims responsibilities under this Article VIII and the Escrow Agreement.
(b) The Shareholder Representative may will be removed entitled to engage such counsel, experts and other agents as the Shareholder Representative deems necessary or replaced only upon delivery of written notice to proper in connection with performing its obligations hereunder and under the Surviving Corporation Escrow Agreement, and will be promptly reimbursed by amounts in the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of Shareholder Representative Escrow Fund for all reasonable Shareholder Representative Expenses incurred by the Shareholder Representative in all matters referred such capacity, up to hereinan amount equal to Five Hundred Thousand Dollars ($500,000). The Shareholder Representative may act in reliance upon any instructionIn addition, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover receive a fee, in the amount of Four Hundred Dollars ($400) per hour, for the performance of its services hereunder and under the Escrow Agreement following the Closing Date (the "Shareholder Representative Fee"). To the extent not paid out of the Shareholder Representative Escrow Fund, the Shareholder Representative Fee shall be paid to the Shareholder Representative from the Escrow Fund following the Escrow Termination Date before any indemnifiable amounts hereunder distributions therefrom are made to the holders of Company Stock, Options and Warrants in accordance with Section 8.5(c). The Shareholder Representative shall not be liable to any holder of Company Stock, Options or other out-of-pocket costs Warrants, and expenses reasonably each holder of the Company Stock, Options and Warrants shall indemnify and hold harmless the Shareholder Representative, pro rata based upon, and up to an amount not to exceed, the Merger Consideration paid to such holder, from any and all Damages that are incurred by the Shareholder Representative on demand in connection with as a result of actions taken taken, or actions not taken, by the Shareholder Representative pursuant herein, in each case except to the terms hereof (including extent of any gross negligence or willful misconduct of the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from Shareholder Representative. In taking any action whatsoever hereunder, the Shareholder Representative Expense Fund. In the event such recovery is precluded shall be entitled to and protected in relying upon any notice, paper or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred other document believed by the Shareholder Representative arising out of or resulting from any action taken or omitted in good faith to be taken genuine, or upon evidence deemed by the Shareholder Representative in good faith to be sufficient. With respect to its service as the Shareholder Representative, the Shareholder Representative shall have no liability as such to the Parent, the Merger Sub or the Surviving Corporation hereunder.
(c) All amounts received by the Shareholder Representative on behalf of the holders of the Company Stock (whether under this Agreement or the Escrow Agreement), other than such liabilitieswill be promptly paid by (or promptly caused to be paid by) the Shareholder Representative to the holders of the Company Stock, lossesOptions and Warrants in accordance herewith and the Escrow Agreement. Notwithstanding the foregoing, damages, claims, costs or expenses determined by a non-appealabe order or judgment the Shareholder Representative will be entitled to reimbursement of a court or tribunal of competent jurisdiction arising out of or resulting any amounts payable to the Shareholder Representative under Section 8.10(b) hereof including Shareholder Representative Expenses and Shareholder Representative Fees from the Shareholder Representative Escrow Amount. Notwithstanding anything herein to the contrary, the Shareholder Representative’s willful violation , at its option, may set off any amounts due under Section 8.10(b) including Shareholder Representative Expenses and the Shareholder Representative Fees against amounts otherwise payable to the holders of Company Stock, Options and Warrants from the law or gross negligence Escrow Fund pursuant to the terms of this Agreement and the Escrow Agreement. In addition, in the performance event the Shareholder Representative receives amounts from holders of its duties under this Agreement. The Company Stock, Options or Warrants to reimburse or contribute toward Shareholder Representative Expenses, the Shareholder Representative may consult with legal counsel set off amounts otherwise payable to holders of its selection Company Stock, Options and Warrants from the Escrow Fund in the event order to refund to holders a pro rata portion of such amounts that were reimbursed or contributed, in order to ensure that all holders bear an equal pro rata portion of any dispute such Shareholder Representative Expenses.
(d) The Parent, Surviving Corporation and the Escrow Agent shall each have the right to rely upon all actions taken or question as to not taken by the meaning Shareholder Representative pursuant hereto and the Escrow Agreement, all of which actions or construction omissions shall be legally binding upon the holders of the Company Stock or any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselthem.
Appears in 1 contract
Sources: Merger Agreement (Healthways, Inc)
Shareholder Representative. (a) Each Upon approval by the stockholders of CTI of the EquityholdersMerger, by virtue of the adoption of this Agreement and thereby the Merger by other transactions contemplated hereby, the Company stockholders of CTI will be deemed to have appointed, as of the Effective Time, Edwa▇▇ ▇. ▇▇▇▇▇ (▇▇e "Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of Representative") as their representative under this Agreement and the Escrow Agreement, including for purposes of the indemnification obligations set forth in this Article VIII, and as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact and agent for and on behalf of such CTI stockholders with authority to take any and all actions and make any and all decisions required or permitted to be taken or made by them under this Agreement and the Escrow Agreement (including the “settling of claims for indemnity). The Shareholder Representative”), Representative shall have full power and authority as agent of the Equityholders receiving consideration hereunder CTI stockholders to act in represent the nameCTI stockholders, place and stead of their successors, heirs, representatives, and assigns with respect to all matters arising under this Agreement and the Equityholders in connection with Escrow Agreement and any other matters concerning the transactions contemplated by this Agreement, in accordance with Agreement and the terms and provisions of this AgreementEscrow Agreement after the Closing, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as action taken by the Shareholder Representative shall deem necessary or appropriate in connection with be binding upon the transactions contemplated CTI stockholders and their successors, heirs, representatives and assigns as if expressly confirmed and ratified by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf each of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementthem.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative shall act in all matters referred to good faith in undertaking his duties set forth herein. The Shareholder Representative may act Representative, acting in reliance upon such capacity, shall not incur any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney liability with respect to any action or other writing delivered to it inaction taken by any other person other than itself without being required to determine the authenticity him except those involving his own willful misconduct or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or ordergross negligence. The Shareholder Representative may act may, in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations questions arising under this Agreement, but rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Shareholder Representative based on such advice, the Shareholder Representative shall not be responsible liable to anyone, except to the Equityholders for extent such action or inaction involves 51 52 the Shareholder Representative's own willful misconduct or gross negligence. Nothing set forth in this Section 8.7(b) shall in any Damages way relieve the Equityholders may suffer by the performance Shareholder Representative in his capacity as a CTI Stockholder of its duties his obligations under this Agreement, other than Damage arising from willful violation Article VIII.
(c) In the event of the law death or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each permanent disability of the Equityholders agrees that Shareholder Representative or his resignation as the Shareholder Representative, a successor Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred appointed by the Shareholder Representative on demand Roge▇ ▇▇▇▇▇▇. ▇▇ompt notice of such appointment shall be delivered in connection with actions taken writing by the Shareholder Representative pursuant to the terms hereof (including the hiring of legal counsel or advisors Roge▇ ▇▇▇▇▇▇ ▇▇ WAXS and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselAgent.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersBy signing this Agreement, by virtue of the adoption of this Agreement and thereby the Merger by the Company each Parent Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted authorized and appointed (and by its execution of this Agreement the Shareholder Representative as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the truesuch Person’s representative, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of such Person with respect to this Agreement and the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, Escrow Agreement and to execute take any and all such documents as actions and make any decisions required or permitted to be taken by the Shareholder Representative shall deem necessary pursuant to this Agreement or appropriate in connection with the transactions contemplated by this Escrow Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including exercise of the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing:
(i) give and receive notices and communications;
(ii) authorize disbursements of cash from the Escrow Amount and direct distributions from the Seller;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with or otherwise handle any matters described in Section 2.06;
(iv) to receive funds for the payment of expenses of the Equityholders agree to, negotiate, enter into settlements and apply such funds compromises of, litigate and comply with or otherwise handle any matters described in payment for such expensesArticle VIII;
(v) execute and deliver all documents necessary or desirable to do carry out the intent of this Agreement and the Escrow Agreement;
(vi) engage, employ, or refrain from doing appoint any further agents or representatives (including attorneys, accountants, and consultants) to assist it in complying with its duties and obligations; and
(vii) take all actions necessary or appropriate in the good faith judgment of the Shareholder Representative for the accomplishment of the following. Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate Parent Shareholders, except as expressly provide in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Escrow Agreement.
(b) The Shareholder Representative may shall be removed or replaced only upon delivery of written notice entitled to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance rely upon any signature believed by it to be genuinegenuine and reasonably assume that a signatory has proper authorization to sign on behalf of a Parent Shareholder or other party. Buyer shall be entitled to deal exclusively with the Shareholder Representative on all matters relating to this Agreement, as described herein (including Section 2.06 and Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Parent Shareholder, and on any other action taken or purported to be taken on behalf of any Parent Shareholder by the Shareholder Representative, as being fully binding upon such Person and such Person’s successors. No Parent Shareholder shall have the right to object to, dissent from, protest, or otherwise contest the same and all defenses which may be available to any Parent Shareholder to contest, negate, or disaffirm the action of the Shareholder Representative taken in good faith under this Agreement or the Escrow Agreement are hereby waived. The provisions of this Section, including the power of attorney granted hereby, and the powers, immunities and rights to indemnification granted to the Shareholder Representative hereunder: (i) are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Parent Shareholders or by operation of Law, whether by death or other event; and (ii) shall survive the delivery of an assignment by any Parent Shareholder of the whole or any fraction of his, her, or its interest in the Escrow Amount.
(c) The Shareholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Parent Shareholders according to each Parent Shareholder’s Pro Rata Fraction (the “Majority Holders”); provided, however, in no event shall the Shareholder Representative be removed without the Majority Holders having first appointed a new Shareholder Representative which shall assume that such person has been properly authorized to do soduties immediately upon the removal of the Shareholder Representative. The In the event of the death, incapacity, resignation, dissolution, or removal of the Shareholder Representative, a new Shareholder Representative shall act for be appointed by the Equityholders on all vote or written consent of the matters set forth Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in this Agreement in such consent or the manner date such notice is received by Buyer; provided, however, that until such notice is received, Buyer shall be entitled to rely on the decisions and actions of the prior Shareholder Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholder Representative believes to be in and the best interests Closing and/or any termination of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of and the Equityholders agrees Escrow Agreement.
(d) The parties hereto and the Parent Shareholders acknowledge and agree that the Shareholder Representative shall will have no Liability to, and will not be entitled to recover liable for any indemnifiable amounts hereunder Losses of, any party or other out-of-pocket costs and expenses reasonably incurred by the any Parent Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant to the terms hereof (including the hiring for any actions, omissions or obligations of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or in connection with the Escrow Agreementtransactions described herein, other than except to the extent such liabilities, losses, damages, claims, costs or expenses determined Losses are proven and adjudicated to be the direct result of willful misconduct by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence Representative in connection with the performance of its duties obligations hereunder and under this the Escrow Agreement. The In no event will the Shareholder Representative may consult with legal counsel be required to advance its own funds on behalf of its selection in the event Parent Shareholders or otherwise. Nothing herein shall limit the liability of any dispute or question person serving as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no Shareholder Representative for liability to the Equityholders such person may have in acting in accordance with the opinion and instructions of such counseltheir capacity as a Parent Shareholder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hunt J B Transport Services Inc)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption For purposes of this Agreement and thereby the Merger by shareholders of SoftMagic, without any further action on the Company Shareholder Approvalpart of any such shareholder, hereby appoints GF Private Equity Group, LLC and shall be deemed to have irrevocably constituted and appointed consented to the appointment of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Sant'▇▇▇▇ as the representative of such shareholders (and by its execution of this Agreement as the "Shareholder Representative"), GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (for and on behalf of each such shareholder, and the “taking by the Shareholder Representative”), Representative of any and all actions and the Equityholders receiving consideration hereunder making of any decisions required or permitted to act in the name, place and stead of the Equityholders in connection with the transactions contemplated be taken by him under this Agreement, including, without limitation, the exercise of the power to (i) execute the Escrow Agreement, (ii) authorize delivery to Puma of the Escrow Shares, or any portion thereof, in accordance satisfaction of Indemnification Claims, (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims, (iv) resolve any Indemnification Claims, and (v) take all actions necessary in the terms judgment of the Shareholder Representative for the accomplishment of the foregoing and provisions all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Shareholder Representative has unlimited authority and power to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection each shareholder of SoftMagic with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers respect to this Agreement that and the Shareholder Representative deems necessary Escrow Agreement and the disposition, settlement or appropriateother handling of all Indemnification Claims, whether prior to, at rights or after the Closing;
(iv) obligations arising from and taken pursuant to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power shareholders of attorney or other writing delivered to it SoftMagic will be bound by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by the Shareholder Representative pursuant in connection with this Agreement, and Puma shall be entitled to the terms hereof (including the hiring rely on any action or decision of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense FundRepresentative. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the The Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from will incur no liability with respect to any action taken or omitted suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him to be taken genuine and to have been signed by the Shareholder Representative proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation Representative may rely on the advice of counsel, and the law Shareholder Representative will not be liable to anyone for anything done, omitted or gross negligence suffered in good faith by the performance of its duties under this AgreementShareholder Representative based on such advice. The Shareholder Representative may consult with legal counsel will not be required to take any action involving any expense unless the payment of its selection such expense is made or provided for in a manner satisfactory to him. At any time during the term of the Escrow Agreement, holders of a majority of the Escrow Shares can appoint a new Shareholder Representative by written consent by sending notice and a copy of the written consent appointing such new Shareholder Representative signed by holders of a majority of the Escrow Shares to Puma and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the event of any dispute consent or question as to the meaning or construction of any of date such consent is received by Puma and the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselEscrow Agent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Puma Technology Inc)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement The parties agree that ▇▇▇▇▇▇▇ ▇▇▇ and thereby the Merger by the Company Shareholder Approval, ▇▇▇▇ ▇▇▇▇▇▇▇▇ are hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive joint representative for and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in shareholders of HeritageBanc (such Persons, and any Proceeding involving other Person duly appointed pursuant to this Agreement, serving as such a representative, the ”Shareholder Representative”) to do take all actions necessary or refrain from doing all such further acts appropriate in the judgment of the Shareholder Representative for the accomplishment of the terms of this Agreement upon and thingsafter the Closing Date. Notwithstanding the initial appointment of two Persons as the Shareholder Representative, there shall be no requirement that the Shareholder Representative be comprised of two Persons, and to execute all such documents the holders of a majority of the shares of HeritageBanc Common Stock may replace or remove any Person serving as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
upon not less than ten (i10) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether days’ prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to Old Second. If there are two Persons serving as the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. ParentShareholder Representative, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power only with the concurrence of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it both such Persons and all writings to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner signed by the Shareholder Representative believes to must be in the best interests executed by both such Persons. No bond shall be required of the Equityholders Shareholder Representative, and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible entitled to the Equityholders receive any compensation for any Damages the Equityholders may suffer by the performance his or her services except as otherwise set forth in this Section 3.6. Notices of its duties under this Agreement, other than Damage arising communications to or from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall constitute notice to or from each of the shareholders of HeritageBanc. If any Person serving as the Shareholder Representative is no longer able or willing to serve as the Shareholder Representative, a new Shareholder Representative may be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs chosen by the holders of a majority of the shares of HeritageBanc Common Stock.
(b) Reasonable and necessary fees and expenses reasonably incurred by the Shareholder Representative on demand Representative, in connection with actions taken by its capacity as Shareholder Representative, after the Closing Date shall be reimbursed to the Shareholder Representative by Old Second promptly upon receipt of appropriate documentation of such fees and expenses.
(c) The Shareholder Representative shall not be liable for any act done or omitted in such capacity while acting in good faith, and any act done or omitted pursuant to the terms hereof (including the hiring advice of legal counsel or advisors shall be conclusive evidence of such good faith. The shareholders of HeritageBanc shall jointly and the incurring of legal fees and other costs) from severally indemnify the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold him or her harmless against any loss, liability or expense incurred without bad faith, gross negligence or willful misconduct and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken in connection with the acceptance or omitted to be taken by the Shareholder Representative under this Agreement administration of his or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreementher duties. The Shareholder Representative may consult with legal counsel of and other necessary experts to advise it with respect to its selection rights and obligations hereunder and shall be fully protected by any act taken, suffered, permitted or omitted in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting good faith in accordance with the opinion and instructions advice of such counselcounsel or experts. Notwithstanding anything set forth in this subparagraph (c) and in subparagraph (b) above, Old Second shall only be liable for fees and expenses of one legal counsel and one tax expert.
(d) Any decision, act, consent or instruction of the Shareholder Representative after the Effective Time in the scope of the Shareholder Representative’s authority as provided in the first sentence of Section 3.6(a)shall constitute a decision of all shareholders of HeritageBanc and shall be final, binding and conclusive upon every shareholder of HeritageBanc, and Old Second and the Surviving Corporation may rely upon any decision, act, consent or instruction (in each case whether given orally or in writing) of the Shareholder Representative.
(e) The adoption of this Agreement and the approval of the Merger and the Contemplated Transactions by the shareholders of HeritageBanc shall constitute approval and ratification by such Persons of: (i) this Agreement and all of the arrangements relating thereto; (ii) the appointment of the Shareholder Representative pursuant to this Agreement; and (iii) the performance of all duties described in this Agreement by the Shareholder Representative on their behalf.
(f) The provisions of this Section 3.6 are intended to be for the benefit of and shall be enforceable by the Shareholder Representative and Old Second.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersShareholder, by virtue of the adoption execution and delivery of this Agreement and thereby the Merger by the Company Shareholder ApprovalAgreement, hereby appoints GF Private Equity Group, LLC consents and shall have irrevocably constituted and appointed (and by its execution agrees to the appointment of this Agreement C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), ” for purposes of all matters expressly set forth in this Agreement to be performed by the Equityholders receiving consideration hereunder Shareholder Representative including without limitation representing the interests of such Shareholder in any dispute relating to act this Agreement in the name, place accordance with Sections 1.12 and stead of the Equityholders in connection with the transactions contemplated 7.10. As to any matter not expressly provided for by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary not be required to exercise any discretion or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise take any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents action that exposes the Shareholder Representative deems necessary to personal liability or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers that is contrary to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) applicable law. The Shareholder Representative may be removed at any time upon the written election of Shareholders who are owed more than fifty percent (50%) of the aggregate Hold Back Amount remaining to be distributed at any time; provided that such Shareholders elect a replacement Shareholder Representative reasonably acceptable to Parent. Each Shareholder hereby constitutes and appoints the Shareholder Representative, including any replacement of any such Shareholder Representative, as attorney-in-fact for such Shareholder with full power of substitution and authority, in his discretion, to enforce this Agreement against the parties hereto, and to execute any amendment or replaced only upon delivery waiver of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation this Agreement and any other Person may conclusively document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and absolutely relyreceive notices and communications and, without inquirylimiting the foregoing provisions of this Section 7.12, upon dispute any actiondecision of Parent to pay itself or any Indemnitee hereunder, decisionto agree to, consent negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any dispute or instruction loss, and to take all actions necessary or appropriate in the reasonable judgment of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine for the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity accomplishment of the service thereofforegoing; provided, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuinehowever, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible have the power or authority to execute an amendment, waiver, document or other instrument that, notwithstanding any other provision to the Equityholders for contrary, increases in any Damages material respect the Equityholders may suffer by obligations or liabilities of any Shareholder without the performance prior written consent of its duties under this Agreementthat Shareholder. For avoidance of doubt, other than Damage arising from willful violation of the law or gross negligence in parties hereto agree that the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that foregoing sentence shall not prevent the Shareholder Representative from agreeing to any payment from the Hold Back or Earnout to Parent. The Shareholders shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs responsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken by performing his duties under this Agreement. Without limiting any other right of the Shareholder Representative, the Shareholder Representative pursuant shall be provided reasonable access to information regarding the terms hereof (including the hiring Company for purposes of legal counsel or advisors and the incurring of legal fees and other costs) from performing his duties hereunder, provided that the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from shall treat confidentially any non-public information.
(b) All decisions of the Shareholder Representative Expense Fundmay be relied upon by any third person, and shall be binding and conclusive upon each Shareholder.
(c) The Shareholder Representative shall not be liable, responsible or accountable in damages or otherwise to the Shareholders for any loss or damage incurred by reason of the Equityholders severally any act or failure to act by such Shareholder Representative, and each Shareholder shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out against any loss or damage except to the extent that such loss or damage shall have been the result of the individual gross negligence or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than willful misconduct of such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counsel.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sonic Innovations Inc)
Shareholder Representative. (a) Each of ▇▇▇▇▇▇▇ agrees to act as, and assume the Equityholdersobligations and responsibilities of, by virtue of the adoption of Shareholder Representative under this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”). Each Shareholder, as a condition of tendering its Shares for the Equityholders receiving consideration hereunder Per Share Merger Consideration shall, pursuant to act in its Letter of Transmittal, (i) irrevocably appoint the nameShareholder Representative as its representative, place agent, proxy, and stead of attorney-in-fact for all purposes under this Agreement, including the Equityholders in connection with full power and authority on such Shareholder’s behalf: (x) to consummate the transactions contemplated by this Agreement, (y) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, certificates, instruments, and documents contemplated by this Agreement or executed or delivered in accordance connection with the terms and provisions of this Agreement, and (z) to act on behalf execute and deliver any amendment or waiver to this Agreement or any of the Equityholders in any Proceeding involving this Agreementother agreements, to do or refrain from doing all such further acts and thingscertificates, instruments, and documents contemplated by this Agreement or executed or delivered in connection with this Agreement to execute all be executed by such documents Shareholder; (ii) consent to ▇▇▇▇▇▇▇ acting as the Shareholder Representative shall deem necessary and to ▇▇▇▇▇▇▇ taking all actions required or appropriate permitted to be taken by the Shareholder Representative pursuant to this Agreement and the other agreements, certificates, instruments, and documents contemplated by this Agreement or executed or delivered in connection with this Agreement and performing the duties of the Shareholder Representative pursuant to the terms hereof or thereof; and (iii) agree to be bound by the provisions of this Section 10.5.
(b) Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to take any such action and no duties other than actions and duties expressly required under this Agreement to be complied with by the Shareholder Representative.
(c) All decisions and actions by the Shareholder Representative shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest, or otherwise contest the same. The Shareholder Representative shall have no Liability in respect of any action, claim, or proceeding brought against the Shareholder Representative by any Shareholder if the Shareholder Representative took or omitted taking any action in good faith or took or omitted to take such action at the direction of the Shareholders owning a majority of the outstanding Preferred Stock immediately prior to the Closing.
(d) The designation of the Shareholder Representative as attorney-in-fact for each Shareholder is coupled with an interest and is binding upon such Shareholder notwithstanding the death, incapacity or dissolution of any such Shareholder. If any such event shall occur prior to the completion of the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with is, nevertheless, to the consummation of the extent that it is legally able to do so, authorized and directed to complete all transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers act pursuant to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply authority as if such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementevent had not occurred.
(be) The Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance Representative’s acceptance of its duties under this Agreement is subject to the following terms and conditions, which the Parties hereto agree shall govern and control with respect to its rights, duties, liabilities and immunities as determined the Shareholder Representative (but not in its capacity as a Shareholder):
(i) The Shareholder Representative, in its capacity as Shareholder Representative, makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or as to the correctness of any statement contained herein, and it shall not be required to inquire as to the performance of any obligation under this Agreement by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the any Party.
(ii) The Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder protected in acting upon written notice, request, waiver, consent, receipt or other out-of-pocket costs paper or document, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth of any information therein contained, which it in good faith believes to be genuine and what it purports to be.
(iii) The Shareholder Representative, in its capacity as Shareholder Representative, shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its own gross negligence or willful misconduct.
(iv) The Shareholder Representative, in its capacity as the Shareholder Representative, may consult with competent and responsible legal counsel selected by it, and it shall not be liable for any action taken or omitted by it in good faith in accordance with the advice of such counsel.
(f) The Shareholders shall bear pro rata (based on the Per Share Merger Consideration owed to each) for all expenses reasonably (including reasonable attorneys’ fees, transfer Taxes and other governmental charges) incurred by the Shareholder Representative on demand in connection with actions taken its duties hereunder and all amounts paid by the Shareholder Representative pursuant to the terms hereof of this Agreement, including without limitation, under Section 2.7, 2.8, 2.9, 2.10, and 8.6 and Article 9, and shall indemnify, defend and hold it harmless against any and all Losses incurred in connection with the performance of this Agreement, except as a result of its own gross negligence or willful misconduct; provided, however, (including i) the hiring obligation of legal counsel or advisors any Shareholder other than ▇▇▇▇▇▇▇ shall be non-recourse to such Shareholder and shall be payable solely from the incurring of legal fees Per Share Merger Consideration and (ii) no Shareholder other costs) from than ▇▇▇▇▇▇▇ shall have any obligation to reimburse the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred Loss paid by the Shareholder Representative arising out pursuant to Article 9 solely as a result of any breach by ▇▇▇▇▇▇▇ of its covenants or resulting from any action taken or omitted to be taken by representations. The Shareholders agree that the Shareholder Representative under shall have the right from time to time to direct the Paying Agent to pay the Shareholder Representative amounts owed to it pursuant to this Section 10.5(f) from amounts then on deposit in the Paying Agent Account.
(g) Notwithstanding anything in this Agreement to the contrary, to the extent the Shareholder Representative has any Liability to any Purchaser Party pursuant to this Agreement or the Escrow any other agreement, certificate, or instrument delivered in connection with this Agreement, other than ▇▇▇▇▇▇▇ shall have personal Liability to such liabilitiesPurchaser Party for such Liability, lossesregardless of the extent to which the Shareholder Representative is entitled or is able, damages, claims, costs either as a Shareholder or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from as the Shareholder Representative’s willful violation of the law or gross negligence in the performance of , to enforce its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of rights against any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselother Shareholder.
Appears in 1 contract
Shareholder Representative. (a) Each of the EquityholdersThe Legacy Shareholders, by virtue of the approval and adoption of this Agreement in the Joinder Agreement, authorize the Shareholder Representative (i) to give and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of receive all notices required to be given under this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreementor any other related agreement, and (ii) to act take any additional action as is contemplated to be taken by or on behalf of the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as Legacy Shareholders by the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf terms of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreement.
(b) All decisions and actions by the Shareholder Representative under this Agreement shall be binding upon all of the Legacy Shareholders, and no Legacy Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(c) The Shareholder Representative may be removed shall not have any liability to any to any Party for any act done or replaced only upon delivery of written notice omitted as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the Surviving Corporation by advice of counsel shall be conclusive evidence of such good faith. The Shareholders shall severally indemnify the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to Shareholder Representative and hold him harmless against any Loss incurred without bad faith on the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction part of the Shareholder Representative and arising out of or in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent connection with the obligations under this Agreementacceptance or administration of his or her duties, but the Shareholder Representative shall not be responsible to the Equityholders for including any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation of the law or gross negligence in the performance of its duties under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably and legal fees and other legal costs incurred by the Shareholder Representative.
(d) The Shareholder Representative shall have full power and authority on demand behalf of each Legacy Shareholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Legacy Shareholders under this Agreement.
(e) By his, her, or its approval of this Agreement, each Company Shareholder agrees, in connection with actions taken by addition to the foregoing, that: (i) Acquiror and any other Acquiror Indemnified Party shall be entitled to rely conclusively on the instructions and decisions of the Shareholder Representative pursuant as to (A) the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share settlement of any and all liabilitiesclaims for indemnification by Acquiror, losses, damages, claims, costs or expenses suffered (B) any other actions required or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted permitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than as applicable, and no Party shall have any cause of action against Acquiror or such liabilities, losses, damages, claims, costs Acquiror Indemnified Party for any action taken by Acquiror or expenses determined by a non-appealabe order such Acquiror Indemnified Party in reliance upon the instructions or judgment decisions of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s willful violation ; (ii) all actions, decisions and instructions of the law Shareholder Representative shall be conclusive and binding upon the Legacy Shareholders and no Company Shareholder shall have any cause of action against the Shareholder Representative for any action taken, decision made or gross negligence in instruction given by the performance of its duties Shareholder Representative under this Agreement. The , except for bad faith by the Shareholder Representative in connection with the matters described in this Section; (iii) the provisions of this Section are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the contemplated transactions; and (iv) remedies available at law for any breach of the provisions of this Section are inadequate; therefore, Acquiror shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving damages if Acquiror brings an action to enforce the provisions of this Section.
(f) A▇▇▇▇ ▇▇▇▇▇▇▇▇, who is serving as the Shareholder Representative may consult with legal counsel of its selection in cease to serve as a representative for Legacy Shareholders (upon no less than thirty (30) days prior notice to Acquiror and each Company Shareholder). In the event of any dispute the death or question permanent disability of A▇▇▇▇ ▇▇▇▇▇▇▇▇, or if A▇▇▇▇ ▇▇▇▇▇▇▇▇ shall give notice of his intent to resign, or is unwilling to serve in the capacity of Shareholder Representative , or is removed as Shareholder Representative, then Legacy Shareholders, collectively (voting together as a single class) shall, by written notice to Acquiror, appoint a successor Shareholder Representative as soon as practicable, and in no event later than thirty (30) days following such death, permanent disability or notice of intent to resign. In addition, the individual serving as the Shareholder Representative may be replaced from time to time by the approvals of the Legacy Shareholders upon not less than ten (10) days prior written notice to the meaning or construction of any Shareholder Representative and Acquiror. Each successor Shareholder Representative shall have all of the provisions hereof or its duties hereunderpower, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and it the term “Shareholder Representative” as used in this Agreement shall incur no liability include any such successor Shareholder Representative.
(g) The provisions of this Section shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Legacy Shareholder, and any references in this Agreement to a Legacy Shareholder or the Legacy Shareholders shall mean and include the successors to the Equityholders in acting in accordance with rights of the opinion Legacy Shareholders, whether under testamentary disposition, the laws of descent and instructions of such counseldistribution or otherwise.
Appears in 1 contract
Sources: Business Combination Agreement (DUET Acquisition Corp.)
Shareholder Representative. (a) Each of the Equityholders, by virtue of the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder In order to act in the name, place and stead of the Equityholders in connection with administer the transactions contemplated by this Agreement, in accordance with including, without limitation, the terms rights and provisions indemnification obligations of the Shareholders under Sections 2.03 and 4.03, the Shareholders hereby designate and appoint the Major Shareholder as their representative for this Agreement, Agreement and to act as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the Equityholders in any Proceeding involving this Agreement, to do or refrain from doing all such further acts "Shareholder Representative"). Said power of attorney shall be coupled with an interest and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders that the Shareholder Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders could do if personally present; and
(vi) to receive service of process in connection with any claims under this Agreementbe irrevocable.
(b) The Each Shareholder Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of hereby authorizes the Shareholder Representative in to represent each Shareholder, and their successors, with respect to all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations arising under this Agreement, but including, without limitation, (i) to take all action necessary in connection with the Shareholder Representative shall not be responsible to the Equityholders for any Damages the Equityholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful violation indemnification obligations of the law Shareholders under Section 4.03, including, the defense or gross negligence in settlement of any claims and the performance making of its duties payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement and (iii) to take any and all additional action as determined is contemplated to be taken by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each on behalf of the Equityholders agrees that the Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder or other out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative on demand in connection with actions taken Shareholders by the Shareholder Representative pursuant to this Agreement.
(c) In the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from event that the Shareholder Representative Expense Fund. In dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the event Shareholders having an aggregate of at least 50% of the ownership interest in the Company immediately prior to the Merger shall select another representative to fill such recovery is precluded or unattainable for over thirty days after demand thereof from vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative Expense Fundfor all purposes of this Agreement. Upon the occurrence of such event, each the Shareholders shall provide written notice to the Buyer and shall indicate the identity of the Equityholders severally substitute Shareholder Representative, who shall indemnify have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred actions by the Shareholder Representative arising out of or resulting from Representative, including, without limitation, any action taken or omitted to be taken by agreement between the Shareholder Representative under this Agreement or and the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from Buyer relating to the Shareholder Representative’s willful violation indemnification obligations of the law Shareholders under Section 4.03, including, the defense or gross negligence in settlement of any claims and the performance making of its duties under this Agreementpayments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders Shareholders with respect to any action taken or suffered by the Shareholder Representative in acting reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 4.03, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in accordance all questions arising under this Agreement, rely on the advice of counsel, and will not be liable to the Shareholders for any action done, omitted or suffered in good faith by the Shareholder Representative.
(e) The Buyer is hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement, including, without limitation, the opinion and instructions indemnification obligations of such counsel.the Shareholders under Section
Appears in 1 contract
Shareholder Representative. (a) Each of the Equityholders, by virtue of the By adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as Shareholder Representative, GF Private Equity Group, LLC hereby accepts its appointment) as the true, exclusive and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, execution or submission of a Form of Election or the acceptance of any portion of the Merger Consideration, each Company Holder hereby designates the Shareholder Representative to execute any and to act all instruments or other documents on behalf of such Company Holder, and to do any and all other acts or things on behalf of such Company Holder, which the Equityholders in any Proceeding involving Shareholder Representative may deem necessary or advisable, or which may be required pursuant to this Agreement, to do the Ancillary Agreements or refrain from doing all such further acts and thingsotherwise, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for the Equityholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) execute the Ancillary Agreements on behalf of each Company Holder; (ii) act for each Company Holder with respect to any the Ancillary Agreements; (iii) give and receive notices and communications to execute and deliver all amendments and waivers or from the Parent relating to this Agreement, the Ancillary Agreements or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that the Shareholder Representative deems necessary any such notice or appropriate, whether prior to, at communication shall be given or after the Closing;
received by such Company Holders individually); (iv) to receive funds for enforce and protect the payment of expenses rights and interests of the Equityholders Company Holders and apply to enforce and protect the rights and interests of such funds Persons arising out of or under or in payment any manner relating to this Agreement and the transactions provided for such expenses;
herein, from and after the Closing; (v) directing the method of payment for any deferred payments owed to do or refrain from doing any further act or deed on behalf of the Equityholders that Company Holders pursuant to Tax Receivables Agreement and coordinating with Parent with respect thereto; (vi) execute a Section 431 Election, to the Shareholder Representative deems extent applicable; and (vii) take all actions necessary or appropriate in its sole discretion relating the judgment of the Shareholder Representative for the accomplishment of the foregoing. The Shareholder Representative shall have authority and power to act on behalf of each Company Holder with respect to the subject matter disposition, settlement or other handling of all claims under this Agreement as fully or the Ancillary Agreements and completely as all rights or obligations arising hereunder or thereunder. The Company Holders shall be bound by all actions taken and documents executed by the Equityholders could do if personally present; and
(vi) to receive service of process Shareholders Representative in connection with this Agreement and the Ancillary Agreements, and the Parent and Surviving NewCo and any claims under this Agreementof their affiliates shall be entitled to rely on any action or decision of the Shareholder Representative. The Shareholder Representative shall receive no compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each Company Holder.
(b) The Shareholder Representative may be removed or replaced only upon delivery of written notice to In performing the Surviving Corporation by the Company Shareholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction of the Shareholder Representative functions specified in all matters referred to herein. The Shareholder Representative may act in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated therein, the propriety or validity of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do so. The Shareholder Representative shall act for the Equityholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests of the Equityholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible liable to any Company Holder in the Equityholders for absence of gross negligence or willful misconduct on the part of the Shareholder Representative. Each Company Holder shall severally (based on each such Company Holder’s Pro Rata Share), and not jointly, indemnify and hold harmless the Shareholder Representative from and against any Damages loss incurred without gross negligence or willful misconduct on the Equityholders may suffer by part of the performance Shareholder Representative and arising out of or in connection with the acceptance or administration of its duties under this Agreementhereunder. The Shareholder Representative may draw at any time, other than Damage arising and from willful violation of time to time, from the law Administrative Expense Account to pay any amounts due by the Company Holders hereunder, including, any losses, third-party fees, expenses or gross negligence costs it incurs in the performance of performing its duties and obligations under this Agreement as determined by a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each on behalf of the Equityholders agrees that Company Holders, including, without limitation, legal and consultant fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement or any Ancillary Agreement (collectively, “Administrative Costs”). From and after the Closing, if the Shareholder Representative determines that the amounts in the Administrative Expense Account are
(c) The grant of authority provided for herein (i) is coupled with an interest and shall be entitled to recover irrevocable and survive the death, incompetency, bankruptcy or liquidation of any indemnifiable amounts hereunder or other out-of-pocket costs Company Holder and expenses reasonably incurred by (ii) shall survive the Shareholder Representative on demand in connection with actions consummation of the Mergers, and any action taken by the Shareholder Representative pursuant to the terms hereof (including the hiring authority granted in this Agreement shall be effective and binding on each Company Holder notwithstanding any contrary action of legal counsel or advisors and the incurring direction from such Company Holder, except for actions or omissions of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless and shall reimburse Shareholder Representatives from and against such Equityholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholder Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from the Shareholder Representative’s constituting willful violation of the law or gross negligence in the performance of its duties under this Agreement. The Shareholder Representative may consult with legal counsel of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselmisconduct.
Appears in 1 contract
Sources: Transaction Agreement (Avista Healthcare Public Acquisition Corp.)
Shareholder Representative. (a) Each By the execution and delivery of this Agreement, each of the Equityholders, by virtue of Shareholder hereby irrevocably constitutes and appoints Ft. ▇▇▇▇ (the adoption of this Agreement and thereby the Merger by the Company Shareholder Approval, hereby appoints GF Private Equity Group, LLC and shall have irrevocably constituted and appointed (and by its execution of this Agreement as “Shareholder Representative”), GF Private Equity Group, LLC and Ft. ▇▇▇▇ hereby accepts its such appointment) , as the true, exclusive true and lawful agent and attorney-in-fact (the “Shareholder Representative”), of the Equityholders receiving consideration hereunder Shareholders with full power of substitution to act in the name, place and stead of the Equityholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, Shareholders and to act on behalf of the Equityholders Shareholders in any Proceeding litigation or arbitration involving this AgreementAgreement and the Transactions, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this AgreementTransactions, including including, without limitation, the power:
(i) to act for the Equityholders Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to transact matters of litigation or other Proceedingslitigation;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this AgreementTransactions;
(iii) to execute receive funds and deliver all amendments and waivers give receipts for funds, including in respect of any adjustments to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the ClosingPurchase Price;
(iv) to receive funds for the payment of expenses of the Equityholders and apply such funds in payment for such expenses;
(v) to do or refrain from doing any further act or deed on behalf of the Equityholders Shareholders that the Shareholder Representative deems necessary or appropriate in its his sole discretion relating to the subject matter of this Agreement as fully and completely as the Equityholders Shareholders could do if personally present; and
(viv) to receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholder Representative may shall be removed deemed coupled with an interest and shall be irrevocable, and shall be binding upon the successors, heirs, executors, administers and legal representatives of each Shareholder and shall not be affected by, and shall survive, the death, incapacity, bankruptcy, dissolution or replaced only upon delivery liquidation of written notice to the Surviving Corporation any Shareholder. All decisions, actions, consents and instructions by the Company Shareholders holding at least a majority Shareholder Representative shall be binding upon all of outstanding shares of Company Common Stock as of immediately prior the Shareholders, and no Shareholder shall have the right to the Effective Timeobject to, dissent from, protest or otherwise contest any such decision, action, consent or instruction. The Parent, the Surviving Corporation Buyer, each Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action, decision, consent or instruction action of the Shareholder Representative in all matters referred to herein. The All notices required to be made or delivered by the Parent, the Buyer or any Company to the Shareholders shall be made to the Shareholder Representative may act for the benefit of the Shareholders and shall discharge in reliance upon any instruction, notice, certification, demand, consent, authorization, receipt, power full all notice requirements of attorney or other writing delivered to it by any other person other than itself without being required to determine the authenticity or validity thereof or the correctness of any fact stated thereinParent, the propriety Buyer and such Company to the Shareholders with respect thereto. The Shareholders hereby confirm all that the Shareholder Representative shall do or validity cause to be done by virtue of his appointment as the Shareholder Representative of the service thereof, or the jurisdiction of the court issuing any judgment or order. The Shareholder Representative may act in reliance upon any signature believed by it to be genuine, and may assume that such person has been properly authorized to do soShareholders. The Shareholder Representative shall act for the Equityholders Shareholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interests interest of the Equityholders Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Equityholders Shareholders for any Damages loss or damages the Equityholders Shareholders may suffer by the performance by the Shareholder Representative of its duties under this Agreement, other than Damage loss or damage arising from willful violation of the law Law by the Shareholder Representative or gross negligence in the performance by the Shareholder Representative of its duties under this Agreement as determined Agreement.
(c) The Shareholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Shareholders holding a non-appealable order or judgment of a court or tribunal of competent jurisdiction. Each majority of the Equityholders agrees Shares as of the Closing (the “Majority Shareholders”), with the prior consent of Buyer, not to be unreasonably withheld. In the event of the death, incapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Shareholders, with the prior consent of Buyer, not to be unreasonably withheld. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by Buyer; provided, that until such notice is received, Parent, Buyer, Ft. ▇▇▇▇ and TPS, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Shareholder Representative as described in Section 14.14(a).
(d) The Shareholder Representative shall be entitled to recover any indemnifiable amounts hereunder reimbursement from the Shareholder Representative Expense Fund and/or otherwise received by it in its capacity as the Shareholder Representative pursuant to or in connection with this Agreement, for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other out-of-pocket costs agents and expenses reasonably consultants) incurred by the Shareholder Representative on demand in connection with actions taken by such capacity; provided, that, other than the payment contemplated under Section 3.5 hereof, neither Parent, Buyer nor the Companies shall have any monetary obligation or liability to the Shareholder Representative pursuant Representative.
(e) Each Shareholder, severally but not jointly, agrees to the terms hereof (including the hiring of legal counsel or advisors and the incurring of legal fees and other costs) from the Shareholder Representative Expense Fund. In the event such recovery is precluded or unattainable for over thirty days after demand thereof from the Shareholder Representative Expense Fund, each of the Equityholders severally shall indemnify and hold harmless the Shareholder Representative and shall reimburse Shareholder Representatives his agents and other representatives from and against such Equityholder’s ratable share its Pro Rata Share of any and all losses, liabilities, lossesexpenses (including reasonable attorneys’ fees), damagesjudgments, claims, costs or expenses suffered or fines and amounts incurred by the Shareholder Representative such Persons arising out of or resulting from any action actions taken or omitted to be taken by the Shareholder Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses determined by a non-appealabe order or judgment of a court or tribunal of competent jurisdiction arising out of or resulting from in the Shareholder Representative’s willful violation capacity as the Shareholder Representative (except for those arising out of the law or Shareholder Representative’s gross negligence in or willful misconduct), including the performance costs and expenses of its duties under this Agreement. The Shareholder Representative may consult with legal counsel investigation and defense of its selection in the event of any dispute or question as to the meaning or construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability to the Equityholders in acting in accordance with the opinion and instructions of such counselclaims.
Appears in 1 contract
Sources: Asset Purchase Agreement (Meta Financial Group Inc)