Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable. (b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement. (c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto. (d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders. (e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name. (f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Interliant Inc)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement Helene Ploix (such person and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, any successor or successors being the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇Representative") shall act as the representative of the Principal Company Shareholders, and shall be authorized to act on behalf of the Principal Company Shareholders and to take any and all actions required or permitted to be taken by the Shareholder Representative under this Agreement or the Indemnity Escrow Agreement, with respect to any claims (including the settlement thereof) made by an Issuer Indemnified Party for indemnification or to be held harmless pursuant to this Article IX of the Agreement and with respect to any actions to be taken by the Shareholder Representative pursuant to the terms of the Indemnity Escrow Agreement. ▇▇▇▇▇▇▇ DATED DECEMBER ___The Principal Company Shareholders shall be bound by all actions taken by the Shareholder Representative in its capacity thereof.
(b) The Shareholder Representative shall at all times act in his or her capacity as Shareholder Representative in a manner that the Shareholder Representative believes in good faith to be in the best interest of the Principal Company Shareholders. Neither the Shareholder Representative nor any of its directors, 1999]officers, agents or employees shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Indemnity Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Shareholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Indemnity Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Indemnity Escrow Agreement, the Shareholder Representative shall not be required to exercise any discretion or take any action.
(c) Each Principal Company Shareholder severally shall indemnify and hold harmless and reimburse the Shareholder Representative from and against such Principal Company Shareholder's ratable share of any and all Losses 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 Indemnity Escrow Agreement, other than such Losses arising out of or resulting from the Shareholder Representative's gross negligence, bad faith or willful misconduct. Each Principal Company Shareholder agrees that the Shareholder Representative may make claims first, against the Expense Escrow Shares, and second, against the Indemnity Escrow Shares, but solely to the extent any Indemnity Escrow Shares are available for transfer to the Shareholder Representative pursuant to Section 1.07(g) or (i) of the Indemnity Escrow Agreement, for any and all Losses against which the Shareholder Representative is to be indemnified, held harmless and reimbursed pursuant to this Section 9.04(c). In the event that the Expense Escrow Shares and, if available pursuant to Section 1.07(g) or (i) of the Indemnity Escrow Agreement, the Indemnity Escrow Shares are not, or the Shareholder Representative reasonably believes will not be, sufficient to indemnify, hold harmless and reimburse the Shareholder Representative pursuant to this Section 9.04(c), the Shareholder Representative may request (an "Additional Funding Request") that additional funds (the "Additional Funds") be deposited by the Principal Company Shareholders with the Expense Escrow Agent to be held pursuant to the terms of the Expense Escrow Agreement by delivery to the Principal Company Shareholders of a written notice (a "Funding Request Notice") making an Additional Funding Request. Each Funding Request Notice shall:
(i) state the amount of Additional Funds required, or estimated in the good faith judgment of the Shareholder Representative to be required, to hold harmless the Shareholder Representative pursuant to this Section 9.04(c) and/or to reimburse the Shareholder Representative for any expenses incurred in connection with the performance of its duties pursuant to Section 9.04;
(ii) state the pro rata share (which will be based on each Principal Company Shareholder's initial interest in the fund established pursuant to the Expense Escrow Agreement (the "Expense Escrow Fund")) of the Additional Funds (the "Pro Rata Amount") that each Principal Company Shareholder shall be required to deliver to the Expense Escrow Agent in the event that the Additional Fund Request is approved by the Principal Company Shareholders in accordance with this Section 9.04(c); and
(iii) specify in reasonable detail the nature and amount of the Losses incurred prior to the date of the Funding Request Notice and the intended use of the Additional Funds. In the event that the holders of a majority of the outstanding Company Shares held by the Principal Company Shareholders as of the Effective Date agree to the Additional Funding Request, all of the Principal Company Shareholders shall be deemed to have agreed to the Additional Funding Request and shall deliver to the Expense Escrow Agent for deposit into the Expense Escrow Fund either (i) cash in an amount equal to such Principal Company Shareholder's Pro Rata Amount or (ii) the number of shares of Issuer Common Stock equal to such Principal Company Shareholder's Pro Rata Amount divided by the Average Closing Price as of the earlier of (i) the date of such delivery to the Expense Escrow Agent and (ii) the date such Principal Company Shareholder mails or instructs its broker to deliver, to the Expense Escrow Agent such shares of Issuer Common Stock. Notwithstanding anything to the contrary contained herein, the Shareholder Representative shall not be liable to any Principal Company Shareholder for taking or omitting to take any action in the event that funds are not, or the Shareholder Representative reasonably believes that funds will not be, available to indemnify, hold harmless or reimburse the Shareholder Representative in accordance with this Section 9.04(c).
(d) Notwithstanding anything to the contrary herein or in the Indemnity Escrow Agreement, the Shareholder Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or the Issuer now or hereafter owned of record or beneficially by any Principal Company Shareholder unless the Shareholder Representative is expressly authorized to do so in a writing signed by such Principal Company Shareholder. In all matters relating to this Article IX, the Shareholder Representative shall be the only party entitled to assert the rights of the Principal Company Shareholders, and the Shareholder Representative shall perform all of the obligations of the Principal Company Shareholders hereunder. The Issuer shall be entitled to rely on all statements, representations and decisions of the Shareholder Representative.
(e) Each Principal Company Shareholder shall deliver to the Shareholder Representative a power of attorney, substantially in the form of Exhibit M attached hereto, to appoint the Shareholder Representative as such Principal Company Shareholder's attorney in fact to perform any act required under this Agreement and the Indemnity Escrow Agreement, subject to the terms hereof and thereof. Each Principal Company Shareholder hereby acknowledges and agrees that the Shareholder Representative may execute and deliver on such Principal Company Shareholder's behalf the Expense Escrow Agreement and, upon such execution and delivery, the Expense Escrow Agreement shall be a binding obligation on such Principal Company Shareholder.
Appears in 1 contract
Shareholder Representative. (a) In order By approving the Mergers by written consent, each Shareholder shall have irrevocably (except as set forth in Section 9.13(b)) authorized and appointed the Shareholder Representative and any replacement representative appointed pursuant to administer the transactions contemplated by this Agreement Section 9.13(b), with full power of substitution, as such Shareholder’s representative and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and exclusive agent to act for and on behalf of each such Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under in connection with this Agreement and the Escrow Agreement, includingincluding full power and authority, without limitationexercisable in the sole discretion of the Shareholder Representative, to: (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by the Shareholders under this Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Operative Document; and (iii) 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 the Shareholder Representative may deem necessary or advisable in connection with this Agreement or any other Operative Document. Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to act on behalf of the Shareholders by Shareholders, except as expressly provided herein or in any other Operative Document, and for purposes of clarity, there are no obligations of the Shareholder Representative pursuant in any ancillary agreement, schedule, exhibit or the Disclosure Letter. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders and their successors, and any and all defenses that may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholder Representative taken in good faith under this Agreement and are waived. Parent may rely upon any such decision, act, consent or instruction of the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative diesas being the decision, becomes unable to perform his responsibilities as Shareholder Representative act, consent or resigns from such position, instruction of the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholders. No Shareholder Representative shall be deemed to be the a fiduciary of any other Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence by reason of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoappointment.
(db) All decisions The Shareholder Representative may resign at any time upon giving thirty (30) day’s prior written notice of such resignation to Parent and actions by each Shareholder but shall exercise all the powers enumerated in Section 9.13(a) until the effective date of such resignation. In the event of such removal or resignation, or upon the death or disability of the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations a majority in interest of the Shareholders under Section 6.03, including, calculated with reference to each Shareholder’s Pro Rata Share shall promptly agree upon a replacement Shareholder Representative. In the defense or settlement event of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 ’s resignation, removal, death or negligence. The disability, if the appointment of a replacement Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable pursuant to the Shareholders.
(e) The Surviving Corporation, preceding sentence has not occurred prior to the Parent and the Escrow Agent are hereby authorized scheduled expiration of any Survival Period set forth in ARTICLE 7 or any period in which any Indemnified Party is required to rely conclusively on the actions, instructions and decisions of provide notice to the Shareholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement Agreement, then such relevant period shall be deemed to be extended by the number of calendar days that elapsed between the Shareholder Representative’s resignation, removal, death or disability and the Escrow Agreementappointment of a replacement Shareholder Representative pursuant to the preceding sentence.
(c) Neither the Shareholder Representative nor its members, includingmanagers, without limitationdirectors, officers, contractors, agents and employees (collectively, the indemnification obligations “Shareholder Representative Group”) shall be liable for any act done or omitted hereunder as the Shareholder Representative while acting in good faith. The Shareholders shall indemnify the Shareholder Representative Group and defend and hold the Shareholder Representative Group harmless against any and all Losses arising out of or in connection with the acceptance or administration of the Shareholders Shareholder Representative’s duties hereunder or under Section 6.03any agreements ancillary hereto, including the defense or settlement fees and expenses of any claims legal counsel or the making of payments experts retained by the Shareholder Representative hereunderand in connection with seeking recovery from insurers (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided that in the event that any such Shareholder Representative Expense is finally adjudicated to have been directly caused by the bad faith, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent gross negligence or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions willful misconduct of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to make a representation the extent attributable to each of the Surviving Corporationsuch bad faith, the Parent and the Escrow Agent that gross negligence or willful misconduct. If not paid directly to the Shareholder Representative is authorized hereunder to undertake by the Shareholders, any such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered Expenses may be recovered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For from the avoidance of doubt, it is hereby acknowledged Shareholder Representative Fund; provided that the indemnity obligation under while this Section is 9.13(c) allows the Shareholder Representative to be paid from the Shareholder Representative Fund, this does not subject relieve the Shareholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the limitations set forth in Section 6.03Shareholder Representative from seeking any remedies available to it at law or otherwise. The Shareholders hereby confirm that In no event will the Escrow Agent is an intended third party beneficiary Shareholder Representative be required to advance its own funds or incur any financial liability on behalf of the terms of this Section and may enforce such Section in its own right and name.
(f) Shareholders or otherwise. The Shareholders acknowledge and agree that the Shareholder Representative may incur costs foregoing indemnities and expenses on behalf immunities will survive the resignation or removal of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage and the Closing and/or the termination of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPthis Agreement., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (DatChat, Inc.)
Shareholder Representative. (a) In order The Healthtrac Stockholders hereby appoint D▇. ▇▇▇▇▇ ▇. Fries to administer 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 account of Healthtrac and the Healthtrac Stockholders and making any and all determinations) which may be required or permitted by this Agreement to be taken by Healthtrac, the Healthtrac Stockholders or the Shareholder Representative, (ii) exercise such other rights, power and authority as are authorized, delegated and granted to the Shareholder Representative hereunder 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 the 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 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 the Shareholder Representative. D▇. ▇▇▇▇▇ ▇. Fries hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as Shareholder Representative in accordance with 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 at any time and a successor representative, reasonably satisfactory to VDOT, may be appointed, pursuant to written action by a majority of 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 this Agreement and the Escrow Agreement, includingbe deemed to be, without limitation, from the indemnification obligations time of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacityappointment, the "Shareholder Representative" for the relevant time period, and from and after such time, the term "). Said power of attorney Shareholder Representative" as used herein and therein shall be coupled with an interest and deemed to refer to such successor. No appointment of a successor shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary effective unless such successor agrees in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required writing to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders bound by the Shareholder Representative pursuant to terms of this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted The Shareholder Representative shall be deemed permitted to be the Shareholder Representative for all purposes of this Agreement retain counsel, consultants and other advisors and the Escrow Agreement. Upon fees and expenses related thereto shall be paid by the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoIndemnifying Parties.
(d) All Notwithstanding any notice received by VDOT to the contrary (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 Indemnifying Parties from and against all liability arising out of (any such indemnifiable amounts constituting Losses) actions, decisions and actions by the Shareholder Representative, including, without limitation, any agreement between determinations of the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, (ii) shall be binding upon entitled to assume that all the Shareholders as if they had taken such action themselvesactions, decisions and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any action taken or suffered by determinations of the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith are fully authorized by the Indemnifying Parties.
(e) The Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, Indemnifying Parties for the Parent performance of any act or the failure to act so long as he acted or failed to act in good faith in what he reasonably believed to be the scope of his authority and for a purpose which he reasonably believed to be in the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions best interests of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameIndemnifying Parties.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations Each of the Shareholders under Section 6.03, the Shareholders Sellers hereby designate and appoint ▇▇appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement , M.D., his or her agent and the Escrow Agreement and as attorney-in-fact and agent fact, as the Shareholder Representative for and on behalf of each the Sellers, to give and receive notices and communications, to authorize the payment of Losses from the Escrow Fund, to object to any claim set forth in an Officer’s Certificate, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, 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 Sellers from time to time upon not less than thirty (30) days prior written notice to the Shareholder Representative and the Buyer; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds of the shares of capital stock of the Management Company issued and outstanding immediately prior to the Closing agree to such removal and to the identity of the substituted agent. Upon any change in such capacity, the "Shareholder Representative"), such successor Shareholder Representative shall promptly provide the Buyer with a signature specimen. Said power Any vacancy in the position of attorney Shareholder Representative may be filled by the holders of a majority in interest of the capital stock of the Management Company issued and outstanding immediately prior to the Closing. No bond shall be coupled with an interest required of the Shareholder Representative, and the Shareholder Representative shall be irrevocablenot receive compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Sellers.
(b) Each The Shareholder hereby authorizes Representative shall not be liable for any act done or omitted hereunder as the Shareholder Representative to represent each Shareholderwhile acting in good faith and in the exercise of reasonable judgment. The Sellers 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 their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary out of or in connection with the indemnification obligations acceptance or administration of the Shareholders under Section 6.03Shareholder Representative’s duties hereunder, including, including the defense or settlement reasonable fees and expenses of any claims and legal counsel retained by the making Shareholder Representative
(c) A decision, act, consent or instruction of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement shall constitute a decision of the Sellers and shall be final, binding and conclusive upon the Sellers, and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance Indemnified Parties may rely upon any noticesuch decision, directionact, instruction, consent, statement consent 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 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions instruction of the Shareholder Representative with respect to this Agreement and as being the Escrow Agreementdecision, includingact, without limitation, the indemnification obligations consent or instruction of the Shareholders under Section 6.03Sellers. In addition, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent may agree to the extent amendment, extension or waiver of this Agreement pursuant to Section 9.3 hereof. The Indemnified Parties are hereby relieved from any liability to any Person for any acts done by them in accordance with such parties have relied upon the actionsdecision, instructions act, consent or decisions instruction of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Share Purchase Agreement (NightHawk Radiology Holdings Inc)
Shareholder Representative. (a) In order to administer The holders of the transactions contemplated outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement and the Escrow Agreement, includingwill be deemed to have irrevocably constituted and appointed, without limitation, the indemnification obligations effective as of the Shareholders under Section 6.03date of this Agreement, the Shareholders hereby designate and appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (together with his permitted respective successors, collectively, the “Shareholder Representative”), as their representative for this Agreement true and the Escrow Agreement lawful agent and as attorney-in-fact fact, and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power , by his execution of attorney this Agreement shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative deemed to represent each Shareholderhave accepted such appointment, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary enter into any agreement in connection with the indemnification obligations transactions contemplated by this Agreement, to exercise all or any of the Shareholders powers, authority and discretion conferred on him under Section 6.03any such agreement, includingto act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the transactions contemplated by this Agreement, the defense to waive or settlement modify any terms and conditions of any claims and the making of payments with respect theretosuch agreement, (ii) to give and receive all notices required on their behalf, and to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another their exclusive representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any noticematter, directionsuit, instructionclaim, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction proceeding arising with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith transaction contemplated by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreementany such agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03assertion, including the defense prosecution, defense, settlement or settlement compromise of any claims claim, action or the making of payments by proceeding for which any Company Shareholder or TPI may be entitled to indemnification and the Shareholder Representative hereunderagrees to act as, and no party hereunder 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 have not be liable for any cause action taken or not taken by him in his capacity as Shareholder Representative either (i) with the consent of action against the Surviving CorporationShareholders who, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions as of the Shareholder Representativedate of this Agreement, own a majority in number of the outstanding shares of Company Stock (considered on an as converted basis), or (ii) in the absence of his own willful misconduct. If the Shareholder Representative undertakes shall be unable or unwilling to serve in 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 Date who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any action hereunder actions taken by the Shareholder Representative in his capacity as a Shareholder Representativesuch, the Shareholder Representative shall be deemed have no liability to make a representation to each TPI, or any of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent its affiliates except for any Loss suffered claims based upon fraud by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tradeshow Products, Inc.)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations Each of the Shareholders under Section 6.03, by acceptance of its portion of the Shareholders hereby designate Merger Shares shall be deemed to have designated and appoint appointed Henry Hernandez (and James M▇▇▇▇▇▇▇▇ ▇. ▇ ▇▇▇ alter▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇t that Mr. Hernandez is unable to se▇▇▇) ▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf ▇▇▇▇ power of each Shareholder substitution (in such capacity, the "Shareholder Representative")) as the representative of any such Shareholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by the Shareholders and deemed to have acknowledged that the Shareholder Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Shareholder including the execution of all agreements and certificates referenced herein. Said power of attorney Each Shareholder is thereby deemed to have further acknowledged that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall be irrevocable.
(b) survive the death or incapacity of such Shareholder. Each Shareholder hereby authorizes is thereby deemed to have authorized the other parties hereto to disregard any notice or other action taken by each Shareholder pursuant to this Agreement except for the Shareholder Representative Representative. The other parties hereto are and will be entitled to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all rely on any action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense so taken or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be notice given under this Agreement or the Escrow 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 Shareholder Representative pursuant and are and will be entitled and authorized to give notices only to the Shareholder Representative for any notice contemplated by this Agreement and to be given to any such Shareholder. By the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate acceptance of 50% ownership interest in the Company immediately prior to its portion of the Merger shall select another representative to fill such vacancy and such substituted Consideration, each Shareholder Representative shall be deemed to be have waived any and all claims that they may have or assert, including those that may arise in the future, against the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action or inaction taken or suffered not taken by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction connection with respect to his service as the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims and the making of payments with respect theretoShareholder Representative, except to in the extent resulting from case of the Shareholder Representative's own bad faith or willful misconduct or negligencemisconduct. The Shareholder Representative may, in all questions arising under this Agreement or In consideration of his agreement to serve as the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a -35- Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent released from any liability for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is action or inaction taken or not subject to the limitations set forth taken in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her his capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand except in the case of the Shareholder Representative's own bad faith or willful misconduct. Each Shareholder hereby agrees that the reasonable and customary fees and expenses incurred by the Shareholder Representative thereforin the exercise of his right or the performance of his duties hereunder (including reasonable attorneys' fees and expenses and the fees and expenses of accountants and other experts) shall be borne by the Shareholders based on their pro rata portion of the Escrow Shares, a percentage of any expenses equal and each Shareholder agrees to promptly reimburse the Shareholder Representative with respect to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPamounts., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Goamerica Inc)
Shareholder Representative. (a) In order By approving the Merger at a special meeting of Shareholders or by written consent, each Shareholder shall have irrevocably (except as set forth in Section 1.1.1(b)) authorized and appointed the Shareholder Representative and any replacement representative appointed pursuant to administer the transactions contemplated by this Agreement Section 1.1.1(b), with full power of substitution, as such Shareholder’s representative and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and exclusive agent to act for and on behalf of each such Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under in connection with this Agreement and the Escrow Agreement, includingincluding full power and authority, without limitationexercisable in the sole discretion of the Shareholder Representative, to: (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by the Shareholders under this Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Operative Document; and (iii) 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 the Shareholder Representative may deem necessary or advisable in connection with this Agreement or any other Operative Document. Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to act on behalf of the Shareholders by Shareholders, except as expressly provided herein or in any other Operative Document, and for purposes of clarity, there are no obligations of the Shareholder Representative pursuant in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders and their successors, and any and all defenses that may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholder Representative taken in good faith under this Agreement and are waived. Parent may rely upon any such decision, act, consent or instruction of the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative diesas being the decision, becomes unable to perform his responsibilities as Shareholder Representative act, consent or resigns from such position, instruction of the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholders. No Shareholder Representative shall be deemed to be the a fiduciary of any other Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence by reason of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoappointment.
(db) All decisions The Shareholder Representative may be removed by written agreement among Parent and actions by a majority in interest of the Shareholders calculated with reference to each Shareholder’s Pro Rata Share. The Shareholder Representative may resign at any time upon giving thirty (30) day’s prior written notice of such resignation to Parent and each Shareholder but shall exercise all the powers enumerated in Section 1.1.1(a) until the effective date of such resignation. In the event of such removal or resignation, or upon the death or disability of the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations a majority in interest of the Shareholders under Section 6.03, including, calculated with reference to each Shareholder’s Pro Rata Share shall promptly agree upon a replacement Shareholder Representative. In the defense or settlement event of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 ’s resignation, removal, death or negligence. The disability, if the appointment of a replacement Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable pursuant to the Shareholders.
(e) The Surviving Corporation, preceding sentence has not occurred prior to the Parent and the Escrow Agent are hereby authorized scheduled expiration of any Survival Period set forth in Section Article 7 or any period in which any Indemnified Party is required to rely conclusively on the actions, instructions and decisions of provide notice to the Shareholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement Agreement, then such relevant period shall be deemed to be extended by the number of calendar days that elapsed between the Shareholder Representative’s resignation, removal, death or disability and the Escrow Agreementappointment of a replacement Shareholder Representative pursuant to the preceding sentence.
(c) Neither the Shareholder Representative nor its members, includingmanagers, without limitationdirectors, officers, contractors, agents and employees (collectively, the indemnification obligations “Shareholder Representative Group”) shall be liable for any act done or omitted hereunder as the Shareholder Representative while acting in good faith. The Shareholders shall indemnify the Shareholder Representative Group and defend and hold the Shareholder Representative Group harmless against any and all Losses arising out of or in connection with the acceptance or administration of the Shareholders Shareholder Representative’s duties hereunder or under Section 6.03any agreements ancillary hereto, including the defense or settlement fees and expenses of any claims legal counsel or the making of payments experts retained by the Shareholder Representative hereunderand in connection with seeking recovery from insurers (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided that in the event that any such Shareholder Representative Expense is finally adjudicated to have been directly caused by the bad faith, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent gross negligence or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions willful misconduct of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to make a representation the extent attributable to each of the Surviving Corporationsuch bad faith, the Parent and the Escrow Agent that gross negligence or willful misconduct. If not paid directly to the Shareholder Representative is authorized hereunder to undertake by the Shareholders, any such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered Expenses may be recovered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For from the avoidance of doubt, it is hereby acknowledged Shareholder Representative Fund; provided that the indemnity obligation under while this Section is 9.14(c) allows the Shareholder Representative to be paid from the Shareholder Representative Fund, this does not subject relieve the Shareholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the limitations set forth in Section 6.03Shareholder Representative from seeking any remedies available to it at law or otherwise. The Shareholders hereby confirm that In no event will the Escrow Agent is an intended third party beneficiary Shareholder Representative be required to advance its own funds or incur any financial liability on behalf of the terms of this Section and may enforce such Section in its own right and name.
(f) Shareholders or otherwise. The Shareholders acknowledge and agree that the Shareholder Representative may incur costs foregoing indemnities and expenses on behalf immunities will survive the resignation or removal of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage and the Closing and/or the termination of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPthis Agreement., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order The Shareholder Representative shall not receive compensation for his services. Notices or communications to administer or from the transactions contemplated by this Agreement Shareholder Representative shall constitute notice to or from each of the Shareholders. The Shareholder Representative shall be entitled to submit a claim and receive reimbursement from the Escrow AgreementFund for all reasonable, includingdocumented out-of-pocket expenses incurred as a result of acting as the Shareholder Representative; provided, without limitationhowever, that such right to reimbursement shall be subordinate to Acquiror's Claims on the indemnification obligations Escrow Fund, if any, and shall be paid only at the end of the Escrow Period, after such Claims have been satisfied. Any such reimbursement of expenses shall, in the sole discretion of a majority of the Shareholders under Section 6.03(excluding the Shareholder Representative), be payable either in (i) cash, (ii) Escrow Shares out of the Escrow Fund or (iii) a combination of cash and Escrow Shares. For purposes of such reimbursement of the Shareholder Representative, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇Escrow Shares shall be valued at the Base Price. ▇▇▇▇▇▇▇▇ as their representative for The Escrow Agent shall have no duty to the Shareholder Representative under this Agreement subsection (a) until the Escrow Agent has received a written request from both Acquiror and the Shareholder Representative referencing this subsection (a), requesting such Escrow Agreement Shares to be delivered to the Shareholder Representative and as attorney-in-fact and agent for and on behalf setting forth the number of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall Escrow Shares to be coupled with an interest and shall be irrevocabledelivered.
(b) Each The Shareholder hereby authorizes Representative shall not be liable for any act done or omitted under this Agreement as the Shareholder Representative while acting in good faith and in the absence of gross negligence or willful misconduct; provided, however, that any act done in or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. In taking any action under this Agreement, the Shareholder Representative shall be entitled to rely on any notice, paper or other document reasonably believed by him to be genuine, or upon any evidence reasonably deemed by him, in his good-faith judgment, to be sufficient. The Shareholders on whose behalf Escrow Shares were deposited in the Escrow Fund shall severally indemnify and hold the Shareholder Representative harmless against any loss, liability or expense incurred by the Shareholder Representative without gross negligence or 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 under this Agreement, the obligations of the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement the Escrow Agent and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement reasonable fees and expenses of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders legal counsel retained by the Shareholder Representative pursuant to in connection with this Agreement and the Escrow Agreement.
(c) In A decision, act, consent or instruction of the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall constitute a decision of all Shareholders and shall be deemed to be final, binding and conclusive upon each Shareholder and each Acquiror Indemnified Party, and all such persons may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and every Shareholder. The Acquiror Indemnified Parties and any other persons are hereby relieved from any liability to any person for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of any acts done by them in accordance with such eventdecision, the Shareholders shall provide written notice to the Surviving Corporationact, the Parent and the Escrow Agent and shall indicate the identity consent or instruction of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to may resign at any action taken or suffered by the Shareholder Representative in reliance upon any noticetime. Upon such resignation, 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 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not appoint a new Shareholder Representative to replace such resigning Shareholder Representative with the same powers and duties as such resigning Shareholder Representative, provided that such newly appointed Shareholder Representative shall have been a Shareholder immediately before the Effective Time and shall be liable reasonably acceptable to the ShareholdersAcquiror.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes or any action hereunder in his capacity successor shall die or become unable to act as a the Shareholder Representative, a replacement shall promptly be appointed by a writing signed by Shareholders who received a majority of the Merger Consideration, provided that such newly appointed Shareholder Representative shall have been a Shareholder immediately before the Effective Time and shall be deemed reasonably acceptable to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameAcquiror.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf Upon any replacement of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, Acquiror will promptly upon demand by deliver to the Escrow Agent notice of such replacement, as well as a specimen signature of such new Shareholder Representative. Before receiving such notice and specimen signature, the Escrow Agent shall not be required to recognize any change in the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPRepresentative., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement event that the Merger is approved, effective upon such vote, and the Escrow Agreementwithout further act of any shareholder, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint J▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall be appointed as their representative for this Agreement agent and the Escrow Agreement and as attorney-in-fact and agent (the “Shareholder Representative”) for each Shareholder, for and on behalf of each the Shareholders, to give and receive notices and communications, to authorize delivery to Parent of cash and shares of Parent Stock 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 take all actions necessary or appropriate in the judgment of the Shareholder (Representative for the accomplishment of the foregoing. 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 majority in interest in the Escrow Fund agree to such capacity, removal and to the "identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Shareholder Representative"), and the Shareholder Representative shall not receive compensation for his or her services. Said power of attorney The Shareholder Representative shall be coupled with an interest and entitled to reimbursement from time to time of any reasonable expenses out of funds available from the Escrow Fund by delivering to the Escrow Agent a reasonably detailed notice thereof. Notices or communications to or from the Shareholder Representative shall be irrevocableconstitute notice to or from each of the Shareholders.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally 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 Shareholders.
(ec) The Surviving CorporationA decision, act, consent or instruction of the Parent Shareholder Representative shall constitute a decision, act, consent or instruction of all Shareholders for whom a portion of the Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and shall be final, binding and conclusive upon each of such Shareholders, and the Escrow Agent are hereby authorized to and Parent may rely conclusively on the actionsupon any such decision, instructions and decisions act, consent or instruction of the Shareholder Representative with respect to this Agreement as being the decision, act, consent or instruction of each and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the every such Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to the extent any person for any acts done by them in accordance with such parties have relied upon the actionsdecision, instructions act, consent or decisions instruction of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Netiq Corp)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement Each Principal Shareholder hereby irrevocably authorizes and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇(the "SHAREHOLDER REPRESENTATIVE"), with full power of substitution and resubstitution, as his or its representative and agent in connection with the Merger.
(b) Each Principal Shareholder agrees that the Shareholder Representative shall have the full power, authority and right to perform, do and take any and all actions he deems necessary or advisable to carry out the purposes of this Agreement and each Operative Document all without liability to such Principal Shareholder (except as expressly stated herein or therein), so long as same are carried out by the Shareholder Representative in good faith. ▇▇▇▇▇▇▇ DATED DECEMBER ___Such actions include the power to amend, 1999]modify or waive any agreement in the name of each Principal Shareholder as if such Principal Shareholder had himself or itself amended, modified or waived such agreement; provided that the Shareholder Representative shall have no power to alter any term of this Agreement which would reduce the amount or change the type of consideration to be received by any Shareholder in respect of the Merger unless a majority of the Shareholders shall so agree. In particular, but not by way of limitation, the Shareholder Representative shall have the power to make and carry out decisions under this Agreement and the Operative Documents on behalf of each Principal Shareholder and to sign documents and make filings on behalf of each Principal Shareholder as if such Principal Shareholder had himself or itself signed or filed such document.
(c) Each Principal Shareholder understands that this appointment is irrevocable.
(d) The Shareholder Representative may resign at any time. Upon such resignation, each Principal Shareholder hereby authorizes the Shareholder Representative to appoint a new Shareholder Representative to replace such resigning Shareholder Representative with the same powers and duties as such resigning Shareholder Representative, provided that such newly appointed Shareholder Representative shall have been a Principal Shareholder immediately prior to the Effective Time.
(e) If the Shareholder Representative or any successor shall die, or become unable to act as the Shareholder Representative, a replacement shall promptly be appointed by a writing signed by the other Principal Shareholders, provided that such newly appointed Shareholder Representative shall have been a Principal Shareholder immediately prior to the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Shopnow Com Inc)
Shareholder Representative. (aA) In order to administer By virtue of the transactions contemplated by approving this Agreement and the Escrow Agreement, including, without limitationaccepting Merger Consideration, the indemnification obligations of the Participating Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇Eric Garfield as "SHAREHOLDER REPRESENTATIVE". The Shareholder Represe▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement be agent and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, of the "Shareholder Representative"). Said power of attorney shall be coupled with an interest Participating Shareholders and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative have full power and authority to represent each Shareholder, all of the Participating Shareholders and their successors, successors with respect to all matters arising under this Agreement Agreement. All actions taken by the Shareholder Representative hereunder shall be binding upon all Participating Shareholders and their successors as if expressly confirmed and ratified in writing by each of them, including, but not limited to, resolving all claims relating the Escrow Agreementand any indemnification claims and obligations. The Shareholder Representative shall take any and all actions which he believes are necessary or appropriate under this Agreement for and on behalf of the Participating Shareholders, as fully as if he were acting on his own behalf, including, without limitation, (i) consenting to, compromising or settling issues with respect to take the Escrow and all action necessary such indemnity claims with Parent under this Agreement, taking any and all other actions specified in or contemplated by this Agreement, and engaging counsel, or accountants in connection with the indemnification obligations foregoing matters. Without limiting the generality of the Shareholders under Section 6.03foregoing, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant shall have full power and authority to this Agreement interpret all the terms and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes provisions of this Agreement and to consent to any amendment hereof on behalf of all Participating Shareholders and such successors. The person designated to serve as the Shareholder Representative may be changed by the Participating Shareholders who are entitled to receive a majority of the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide when and if it becomes payable hereunder from time to time upon not less than ten days prior written notice to the Surviving Corporation, the Parent and the Escrow Agent and Parent. No bond shall indicate the identity be required of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between and the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall receive no compensation for services but shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right entitled to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any action taken or suffered be reimbursed by the Shareholder Representative Participating Shareholders for reasonable expenses incurred in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations performance of the Shareholders under Section 6.03his duties hereunder, including the defense or settlement expenses of any claims and the making of payments with respect thereto, except to the extent resulting legal counsel. All such expenses shall be payable from the Shareholder Representative's own willful misconduct or negligence. Escrow, if sufficient.
(B) The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) Participating Shareholders for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. The Surviving CorporationParticipating Shareholders shall severally indemnify the Shareholder Representative and hold his harmless from and against any loss, the Parent and the Escrow Agent are hereby authorized to rely conclusively liability or expense incurred without gross negligence or bad faith on the actions, instructions and decisions part of the Shareholder Representative and arising out of or in connection with respect the acceptance and administration of his duties hereunder.
(C) The Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about Parent or the Company to this Agreement anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(D) A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of all the Participating Shareholders and shall be final, binding and conclusive upon each such Shareholder, and Parent may rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and every such Shareholder. The Custodian under the Escrow Agreement, includingParent and the Company are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, without limitationact, the indemnification obligations of the Shareholders under Section 6.03, including the defense consent or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions instruction of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order Richard A. Butler shall be the initial representative ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Participants with respect to administer their interests in the transactions contemplated by this Agreement Holdback Escrow and the Holdback Consideration. Subject to the foregoing, the Shareholder Representative shall promptly and completely exercise such authority in a timely manner to:
(i) participate in, represent and bind the Holdback Participants in all respects with respect to any arbitration or legal proceeding relating to this Holdback Escrow Agreement, including, without limitation, the indemnification obligations defense and settlement of any matter, and the calculation thereof for every purpose thereunder, consent to jurisdiction, to enter into any settlement, and to entry of judgment, each with respect to any or all of the Shareholders under Section 6.03Holdback Participants;
(ii) receive, comment on, accept and give notices and other communications relating to this Holdback Escrow Agreement;
(iii) take any reasonable action that the Shareholder Representative deems necessary or desirable in order to fully effectuate the transactions contemplated by this Holdback Escrow Agreement; provided that, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative responsibility for this Agreement seeking Resolution of Assets shall be that of American, ASC and the Bank pursuant to this Holdback Escrow Agreement Agreement; and
(iv) execute and as attorney-in-fact and agent for and on behalf deliver any instrument or document that the Shareholders Representative deems necessary or desirable in the exercise of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocablehis authority under this Holdback Escrow Agreement.
(b) Each If any Shareholder hereby authorizes Representative shall have died, become incapacitated or unable to serve or resigned, those Holdback Participants who, as of immediately prior to the Effective Date, held shares of ASC Common Stock entitling such shareholders to receive a majority of the Holdback Consideration (a "Majority in Interest") shall promptly designate by written notice delivered to the Escrow Agent, a replacement Shareholder Representative. In addition, a Majority in Interest shall maintain the right to remove the Shareholder Representative and designate by written notice delivered to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow AgreementAgent, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 a replacement Shareholder Representative pursuant to this Agreement and the Escrow AgreementRepresentative.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Compensation to Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, at the Shareholders having an aggregate hourly rate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy $175 and such substituted Shareholder Representative shall be deemed to be any reasonable costs and expenses incurred by the Shareholder Representative for all purposes of in connection with actions taken pursuant to or permitted by this Agreement section will initially be reimbursed by the Bank and deducted from the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoHoldback Escrow.
(d) All decisions parties hereto shall be entitled to rely on all actions and actions by the Shareholder Representative, including, without limitation, communications of any agreement between the such Shareholder Representative as being genuine and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations binding on all of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the ShareholdersHoldback Participants.
(e) The Surviving CorporationShareholder Representative shall have no liability to any Holdback Participants for any act or omission or obligation hereunder, unless such action or inaction results from the Parent Shareholder Representative's gross negligence or willful misconduct. The duties and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions responsibilities of the Shareholder Representative with respect to hereunder shall be determined solely by the express provisions of this Holdback Escrow Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense no other or settlement of any claims further duties or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative responsibilities shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameimplied.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Peoples Community Bancorp Inc /Md/)
Shareholder Representative. (a) In order to administer the transactions contemplated by Concurrently with approving this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03Merger, the Shareholders hereby designate and shall appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ an individual or entity as their representative for this Agreement agent and the Escrow Agreement and as attorney-in-fact and agent fact, as the shareholder representative for and on behalf of each Shareholder the Shareholders (in such capacity, the "Shareholder Representative"), to give and receive notices and communications, to object to such retention, 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 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. Said power 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 attorney a majority interest of the Shareholders agree to such removal and to the identity of the substituted agent. The Shareholder Representative may resign at any time upon written notice to Parent and the Shareholders. Any vacancy in the position of Shareholder Representative may be filled by the holders of a simple majority interest of the Escrow Fund. No bond shall be coupled with an interest required of the Shareholder Representative, and the Shareholder Representative shall be irrevocablenot receive compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable for any act done or omitted hereunder as the Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount is contributed to the Shareholders.
(e) The Surviving CorporationEscrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, the Parent and the Escrow Agent are hereby authorized to rely conclusively liability or expense incurred without negligence or bad faith on the actions, instructions and decisions part of the Shareholder Representative and arising out of or in connection with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense acceptance or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions administration of the Shareholder Representative. If '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, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative undertakes as being the decision, act, consent or instruction of the Shareholders. The Parent is hereby relieved from any action hereunder in his capacity as a Shareholder Representativeliability to any person for
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Shareholder Representative shall be deemed entitled to make a representation receive payment for its reasonable and documented expenses therefrom, prior to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject payments to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameShareholders.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order Each of the Shareholders hereby designates and appoints the Shareholder Representative to administer the transactions perform all such acts as are required, authorized or contemplated by this Agreement and to be performed by the Escrow Agreement, Shareholders (including, without limitation, the indemnification obligations execution and delivery of any waivers, consents, approvals, extensions, amendments and other agreements, the giving and receipt of notices, the resolution of disputes and any matters or proceedings referred to in Article VIII hereof) and hereby acknowledges that the Shareholder Representative shall be the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Shareholder. Each Shareholder further designates and appoints the Shareholder Representative as its agent for service of process with respect to any disputes regarding or arising out of this Agreement or any transaction contemplated hereby. Any Shareholder other than Shareholder Representative who is not an accredited investor under the Securities Act has designated and hereby further designates Shareholder Representative as his or her purchaser representative in accordance with Regulation D under the Securities Act and any corresponding provision of any state securities laws, for purposes of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇transactions contemplated herein. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Each Shareholder (in such capacity, the "including Shareholder Representative"). Said power of attorney ) acknowledges that the foregoing appointments and designations shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes survive the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense death or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence incapacity of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent Shareholder and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by that the Shareholder Representative shall not be liable for any such action taken in good faith. Each Shareholder hereby authorizes the other parties hereto to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the disregard any notice delivered or other action taken by any Shareholder Representative with respect pursuant to this Agreement except for the Shareholder Representative. The other parties hereto are and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense will be entitled to rely on any action so taken or settlement of any claims or the making of payments notice given by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent are and will be entitled and authorized to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If give notices only to the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered notice contemplated by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject Agreement to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and namebe given to any Shareholder.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer The Shareholder Representative shall be selected by the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations holders of a majority of the Shareholders under Section 6.03, Company Capital Stock prior to the Shareholders hereby designate Closing Date and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement shall become each Shareholder's agent and the Escrow Agreement and as attorney-in-fact and agent fact, for and on behalf of each the Shareholders, to give and receive notices and communications, to authorize payment to Parent of cash 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 against the Escrow Fund and for arbitration of indemnification claims as set forth in Section 7.3(f)(ii) hereof and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. 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 at least three of the Founders agree to such removal and to the identity of the substituted agent. Any vacancy in such capacitythe position of Shareholder Representative may be filled by the vote of a majority in interest of the Shareholders. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive compensation for his or her services from Parent, the "Company or the Surviving Corporation. Notices or communications to or from the Shareholder Representative"). Said power of attorney Representative shall be coupled with an interest and shall be irrevocableconstitute notice to or from the Shareholders.
(b) Each Shareholder hereby authorizes A decision, act, consent or instruction of the Shareholder Representative Representative, including but not limited to represent each Shareholderan amendment, and their successors, with respect to all matters arising under extension or waiver of this Agreement pursuant to Sections 8.3 and the Escrow Agreement8.4 hereof, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations shall constitute a decision of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be final, binding and conclusive upon the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent Shareholders; and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance may rely upon any noticesuch decision, directionact, instruction, consent, statement consent 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 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions instruction of the Shareholder Representative with respect to this Agreement and as being the Escrow Agreementdecision, includingact, without limitation, the indemnification obligations consent or instruction of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to the extent any person for any acts done by them in accordance with such parties have relied upon the actionsdecision, instructions act, consent or decisions instruction of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to efficiently administer the transactions contemplated by determination of any Indemnity Claims under this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations Shareholder Representative shall be the sole and exclusive representative of the Socati Converted Shareholders in respect of their indemnity rights and obligations under this Agreement. The Parties shall be entitled to rely on the Shareholder Representative as having the authority to make all decisions and take all actions relating to the respective rights, obligations and remedies of the Socati Converted Shareholders under Section 6.03this Agreement, and deal exclusively with the Shareholders hereby designate Shareholder Representative in respect of all such matters, including to deliver or receive any Notice of Claim or other notices or instructions in respect of an Indemnity Claim, to investigate, negotiate, settle, pursue and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement defend any Indemnity Claims, to give releases and the Escrow Agreement and as attorney-in-fact and agent for and discharges in respect of any Indemnity Claim on behalf of each the Socati Converted Shareholders and to take all other actions that are either (i) necessary or appropriate in the judgement of the Shareholder Representative for the accomplishment of the foregoing, or (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocableii) specifically mandated by this agreement.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each ShareholderAll decisions, instructions and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated actions to be taken by the Socati Converted Shareholders, or on behalf 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 Shareholders 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 pursuant to this Agreement and as being the Escrow Agreementdecision, consent, instruction or action of the Socati Converted Shareholders.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall will incur no liability to the Shareholders of any kind with respect to any action taken or suffered omission by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders its services under Section 6.03, including the defense or settlement of this Agreement and any claims and the making of payments with respect theretoAncillary Agreements, except to in the extent event of liability resulting from the Shareholder Representative's own willful misconduct ’s gross negligence, bad faith, fraud or negligencewilful misconduct. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable for any action or omission pursuant to the Shareholdersadvice of its legal counsel. The Socati Converted Shareholders shall jointly and severally indemnify, defend and hold harmless the Shareholder Representative from and against all claims, liabilities, losses, damages, costs, penalties, fines, forfeitures and expenses (including reasonable expenses relating to legal counsel, experts and their staff) arising out of or in connection with the Shareholder Representative’s role under this Agreement (the “Representative Losses”).
(ed) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions Shareholder Representative shall be entitled recover any Representative Losses out of the Shareholder Representative with respect Indemnity Shares that would otherwise be released to this Agreement and the Escrow Agreement, including, without limitation, Socati Converted Shareholders at the indemnification obligations end of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunderIndemnity Period, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, Yooma and the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and instruct the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameaccordingly.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement
Shareholder Representative. (a) In order the event the Merger is approved by the Shareholders, effective upon such vote, and without any further action of any Shareholder, ▇▇▇ ▇▇▇ ▇▇▇▇ is constituted and appointed as Shareholder Representative for and on behalf of each Shareholder. Shareholder Representative shall be authorized on behalf of any Indemnifying Shareholder to administer give and receive notices and communications, 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 take all actions necessary or appropriate in the transactions contemplated judgment of 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. Shareholder Representative may resign at any time, and such agency may be changed by approval of the holders of a majority-in-interest of the Company Shares immediately prior to the Effective Time. No bond shall be required of Shareholder Representative, and Shareholder Representative shall not receive compensation for his or her services. Notice or communications to or from Shareholder Representative pursuant to Section 9.1 of this Agreement shall constitute notice to or from each of the Indemnifying Shareholders.
(b) A decision, act, consent or instruction of Shareholder Representative shall constitute a decision of all Indemnifying Shareholders and shall be final, binding and conclusive upon each such Indemnifying Shareholder, and Purchaser may rely upon any decision, act, consent or instruction of Shareholder Representative as being the decision, act, consent or instruction of each and every such Indemnifying Shareholder. Purchaser is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of Shareholder Representative.
(c) Shareholder Representative has only the duties expressly stated in this Agreement and shall have no other duty, express or implied. Shareholder Representative is not, nor shall be deemed, a fiduciary of the Escrow AgreementIndemnifying Shareholders in any capacity or for any purpose. Shareholder Representative shall have no responsibility or liability for any representation, includingwarranty or covenant of the Company, without limitationPurchaser or Merger Sub except, if applicable, solely in his or her capacity as an Indemnifying Shareholder. Shareholder Representative shall not be liable to any Indemnifying Shareholder for any act done or omitted hereunder as representative of the Indemnifying Shareholders while acting in good faith even though such act or omission constitutes, or may constitute, negligence or gross negligence on the part of such Shareholder Representative. Shareholder Representative shall, in no case or event, be liable to any Indemnifying Shareholder for punitive, incidental or consequential damages. Without limiting the generality of the foregoing, the indemnification obligations Shareholder Representative shall not be liable for forgeries or false impersonations by other parties. Shareholder Representative may engage attorneys, accountants and other professionals and experts. Shareholder Representative shall not receive any compensation for his services in such capacity; provided, however, that Shareholder Representative shall be entitled to reimbursement from the Indemnifying Shareholders for his reasonable out-of-pocket expenses, including reasonable attorney's fees, incurred in performing his duties and functions. At the request of Shareholder Representative, such amounts shall be paid by the Purchaser, up to a maximum of Fifty Thousand Dollars ($50,000), on behalf of the Indemnifying Shareholders under and immediately deducted, on a pro-rata basis, from the principal amount of Notes. Notwithstanding anything contained in the immediately preceding sentence, any amounts owed by Purchaser to Shareholder Representative for his reasonable out-of-pocket expenses, including reasonable attorney's fees, incurred in performing his duties and functions shall be subordinated to Purchaser's right of set off pursuant to the terms of Section 6.038.6 hereof. Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company or another person, that were prepared or presented by (i) one or more officers or employees of the Company, or (ii) legal counsel, public accountants, investment bankers or other persons as to matters Shareholder Representative believes in good faith are within the person's knowledge, professional or expert competence. Any action taken by Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of such Shareholder Representative's duties. The Indemnifying Shareholders hereby designate shall indemnify Shareholder Representative and appoint ▇hold Shareholder Representative harmless from and against any loss, liability or expense incurred without bad faith on the part of Shareholder Representative and arising out of or in connection with the acceptance or administration of Shareholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by Shareholder Representative.
(d) Shareholder Representative shall have reasonable access to information about the Company, Purchaser and the Surviving Corporation and the reasonable assistance of the Company's, Purchaser's or the Surviving Corporation's officers and employees for purposes of performing his duties and exercising his rights hereunder, provided, however, that Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company, Purchaser or the Surviving Corporation to anyone (except on a need-to-know basis to individuals who agree to treat such information confidentially).
(e) The parties acknowledge and agree that, notwithstanding the fact that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ LLP acted as their representative for this Agreement and special counsel to the Escrow Agreement and Company (which effective as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney Closing shall be coupled with an interest and shall be irrevocable.
(bwholly owned by Purchaser in the form of the Surviving Corporation) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under transactions contemplated by this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___LLP shall, 1999]if so requested, be permitted to represent the Shareholder Representative, the Shareholders and /or the Indemnifying Shareholders, and their respective heirs, executors, administrators, affiliates, successors and assigns, in connection with any and all matters, negotiations and/or disputes which may arise out of or in connection with this Agreement or the Contemplated Transactions.
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the The Company Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇have irrevocably appointed Gre▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ act as their the sole and exclusive representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power ) to make all decisions and determinations on behalf of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Company Shareholders under this Agreement that the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and may deem necessary or appropriate. Without limiting the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations generality of the Shareholders under Section 6.03, includingimmediately preceding sentence, the defense Shareholder Representative may, in his sole good faith discretion, object to, settle or settlement compromise any Notice of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given Damages made by Buyer under this Agreement or any dispute with respect to the Escrow Agreement final Cash Amount, the Adjustment Amount, the Purchase Price Adjustment or the Accounts Receivable Deficiency, and (iii) to take any and all additional action as is contemplated authorize payments to be made with respect thereto. All action taken by or on behalf of the Shareholders by the Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, hereunder shall be binding upon all the Company Shareholders and their successors as if they had taken such action themselvesexpressly confirmed and ratified in writing by each of them, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any noticeAll actions, direction, instruction, consent, statement or other documents believed by him to be genuinely decisions and duly authorized, nor for any other action or inaction with respect to the indemnification obligations instructions of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent conclusive and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions binding upon all of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Company Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder Company Shareholder shall have any cause of action against the Surviving CorporationShareholder Representative for any action taken, the Parent decision made or instruction given by such Shareholder Representative under or with respect to this Agreement or the Escrow Agent to the extent Merger Agreement, except for gross negligence or willful misconduct by such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If B-7 72
(b) The Shareholder Representative will be entitled to reimbursement of reasonable costs and expenses (including reasonable attorneys' fees and arbitration costs) incurred by him or her in connection with the performance of his or her services and functions under or relating to this Agreement and/or the Merger Agreement (the "Expenses"). At the Closing, a sum equal to one percent (1%) of the Estimated Purchase Price shall be placed into an interest-bearing escrow account (the "Shareholder Representative Escrow") established by the Shareholder Representative undertakes any action hereunder from which the Shareholder Representative shall have the right to withdraw the Expenses, from time to time, in his capacity discretion and without any consent or approval of Buyer or any other party. When all Escrow Funds have been disbursed as a Shareholder Representativeprovided in this Agreement and the Expenses have been paid, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that disburse any balance remaining in the Shareholder Representative is authorized hereunder Escrow as additional Purchase Price to undertake the Company Shareholders, in the manner set forth in Section 8 of this Agreement; provided, however, that if the Shareholder Representative believes, in his discretion, that he may incur additional Expenses subsequent to such actiontime in connection with any potential claims that may be asserted against the Shareholder Representative or otherwise, the Shareholder Representative shall have the right to retain such portion of the remaining balance in the Shareholder Representative Escrow for such period of time as he deems necessary, in his discretion, to cover such Expenses. Upon determination by the Shareholder Representative that no further Expenses will be incurred, the Shareholder Representative shall thereafter disburse any balance remaining in the Shareholder Representative Escrow as provided above.
(c) The Shareholder Representative, or any successor to him hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Shareholder Representative agrees to indemnify and hold harmless each as hereinafter provided. In case of the Surviving Corporation, resignation or the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions death or inability to act of the Shareholder Representative hereunder. For appointed by the avoidance Company Shareholders, or any of doubthis successors, it is hereby acknowledged that a successor shall be named by the indemnity obligation under this Section is not subject to the limitations set forth vote of a majority in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary interest of the terms of this Section and may enforce Company Shareholders. Each such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the successor Shareholder Representative may incur costs shall have the power, authority, rights and expenses on behalf of privileges hereby conferred upon the Shareholders in her capacity as original Shareholder Representative succeeded by him, and the term "Shareholder Representative. Each of the Shareholders agrees " as used herein shall be deemed to pay the include a successor Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order The ASA Shareholders have agreed to administer appoint one person to act as their representative, attorney in fact and proxy with respect to certain matters specified in this Agreement, the transactions contemplated by this Escrow Agreement and the Escrow Agreement, including, without limitation, Registration Rights Agreement (the indemnification obligations of the "Shareholder Representative"). The ASA Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇have designated ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for the initial Shareholder Representative. The Shareholder Representative may resign at any time, and a Shareholder Representative may be removed by the vote of persons who were ASA Shareholders. In the event of the death, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by a vote of ASA Shareholders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative. Any failure by the ASA Shareholders to appoint a new Shareholder Representative upon the death, resignation or removal of the Shareholder Representative shall not have the effect of releasing the ASA Shareholders from any liability under this Agreement and Agreement, the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocableor otherwise.
(b) Each The Shareholder Representative shall have exclusive power and authority to execute and deliver the Escrow Agreement and the Registration Rights Agreement on behalf of the ASA Shareholders and each of the ASA Shareholders hereby authorizes and directs the Shareholder Representative to represent each Shareholderexecute and deliver, upon the Closing, the Escrow Agreement and their successorsthe Registration Rights Agreement on its behalf and agrees to be bound by the provisions thereof in the same manner as if such ASA Shareholder was an original party thereto. The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to the Shareholder Representative under this Agreement, the Escrow Agreement and the Registration Rights Agreement (including with respect to all matters arising under claims for indemnification pursuant to this Article 11, the Escrow Agreement and the Registration Rights Agreement); provided, however, that the Shareholder Representative will have no obligation to act on behalf of the ASA Shareholders, except as expressly provided herein and in the Escrow Agreement and the Registration Rights Agreement. The Shareholder Representative will at all times be entitled to rely on any directions received from the ASA Shareholders. The Shareholder Representative shall, includingat the expense of the ASA Shareholders, without limitationbe entitled to engage such counsel, (i) to take all action experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the indemnification obligations absence of bad faith on the part of the Shareholders under Section 6.03, including, Shareholder Representative) shall be entitled to conclusively rely on the defense or settlement opinions and advice of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreementsuch persons.
(c) The Shareholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the payment of all his or her reasonable expenses incurred as the Shareholder Representative, which expenses shall be payable from the proceeds of the Escrow Shares or such other property held in escrow from time to time under the Escrow Agreement or, at the option of the ASA Shareholders, cash. In connection with this Agreement, the Escrow Agreement, the Registration Rights Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Shareholder Representative hereunder, 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 in connection with this Agreement, the Escrow Agreement, the Registration Rights Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct. Each ASA 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 (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims 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 or under the Escrow Agreement, the Registration Rights Agreement or otherwise. 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 that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or of any substitute indemnification hereunder, upon written notice from Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger ASA Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall select another representative promptly deliver to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes full payment of this Agreement and his or her ratable share of the Escrow Agreement. Upon the occurrence amount of such eventdeficiency, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoin accordance with such ASA Shareholder's percentage interest.
(d) All decisions of the indemnities, immunities and actions by the Shareholder Representative, including, without limitation, any agreement between powers granted to the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or shall survive the Closing and/or any termination of this Agreement, the Escrow Agreement rely on and/or the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the ShareholdersRegistration Rights Agreement.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
Shareholder Representative. (a) In order For purposes of this Agreement, the Shareholders hereby designate ▇▇▇▇▇ to administer serve as the sole and exclusive representative of the Shareholders (the “Shareholder Representative”) with respect to those provisions of this Agreement that contemplate action by the Shareholder Representative and with respect to the Escrow Agreement; provided, however, that if ▇▇▇▇▇ at any time is unable, due to incapacity or otherwise, to serve as Shareholder Representative or resigns as Shareholder Representative, then ▇▇▇▇▇ shall serve as 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. 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 constituted and appointed as 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 foregoing, the Shareholder Representative has full power and authority, on behalf of each Shareholder and such Shareholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Shareholders in connection herewith, including the Escrow Agreement, (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations (iii) receive service of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary process in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement 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 (iiiix) to take any and all additional action as is contemplated to be taken by actions necessary or appropriate in the judgment of the Shareholder Representative on behalf of the Shareholders by the Shareholder Representative pursuant to in connection with this Agreement and the Escrow Agreement.
(c) In Service by the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be without compensation except for the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, reimbursement by the Shareholders shall provide written notice to the Surviving Corporation, the Parent of out-of-pocket expenses and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party heretoindemnification specifically provided herein.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur have no liability to the Shareholders with respect to any action taken duties or suffered by the Shareholder Representative in reliance upon any noticeresponsibilities except those expressly set forth herein, directionand no implied covenants, instructionfunctions, consentresponsibilities, statement duties, obligations 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 6.03, including the defense or settlement liabilities on behalf of any claims and the making of payments with respect thereto, except to the extent resulting from Shareholder shall otherwise exist against the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to any Shareholder relating to the Shareholdersperformance 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) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized Buyer shall be entitled to rely conclusively on upon any actions taken by the actions, instructions and decisions 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 and or the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Stock Purchase Agreement (DSW Inc.)
Shareholder Representative. (a) In order 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 administer 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 by 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, includingand 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, without limitationactions, consents, and instructions by the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for Shareholder Representatives with respect to this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest absolutely and shall be irrevocable.
(b) Each Shareholder hereby authorizes irrevocably binding upon all of the Shareholder Representative to represent each Shareholder, and their successors, Shareholders with respect to all matters arising their interests as shareholders under this Agreement and the Escrow Agreement, includingand no such Shareholder shall have the right to object to, without 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 take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims give and the making of payments with respect theretoreceive notices and communications as provided herein, (ii) to give 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 notices 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 Shareholder 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 as set forth in the Letters of Transmittal, irrevocably transfer and assign to the Shareholder 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 expenses of the Shareholder Representatives incurred in connection with this Agreement, the Escrow Agreement and the Indemnity Agreement, such shortfall shall be paid in accordance with the Contribution Agreement.
(c) 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 Representatives hereunder or 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 the Company, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or actual or intentional fraud, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by each and every one of the Shareholders, (ii) the Shareholder Representatives shall be entitled to rely in 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 rely on any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder or under the Escrow Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the service thereof, (iv) the Shareholder Representatives may act in reliance upon any instrument or signature believed by it to be given genuine and may assume that the Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so, and (v) the Shareholder 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 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 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 Shareholder Representatives under this Agreement, 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 and (iii) to take any and all additional action as is contemplated to be taken by or on behalf in the Escrow Fund. The appointment of the Shareholders by the Shareholder Representative pursuant 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 Escrow Agreement.
(ce) In connection with the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ performance of his or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such positionits obligations hereunder, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who Representatives shall have agreed the right, acting together, at any time and from time to time to select and engage, at the terms of this Section as if he were a party hereto.
(d) All decisions cost and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations expense of the Shareholders under (as contemplated by Section 6.032.12(b)), includingattorneys, accountants, investment bankers, advisors, consultants, and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as he or it may deem necessary or desirable and incur other out-of-pocket expenses related to performing his or its services hereunder. Except for reimbursement of out-of-pocket expenses, the defense or settlement of any claims and the making of payments with respect hereto, Shareholder Representatives shall be binding upon all the Shareholders as if they had taken such action themselves, and receive no Shareholder shall have the right to object, dissent, protest or otherwise contest the samefees for their services under this Agreement. The Shareholder Representative shall incur no liability Representatives may act pursuant to the Shareholders advice of counsel with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him matter relating to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholdersfor any action taken or omitted by it in good faith in accordance with such advice.
(ef) Buyer hereby agrees that the Shareholder Representatives shall not, in their capacities as such, have any liability to Buyer or any of its Affiliates whatsoever with respect to their actions, decisions or determinations. The Surviving Corporation, the Parent and the Escrow Agent are Shareholder Representatives hereby authorized agree that Buyer has no liability to rely conclusively on any Person with respect to the actions, instructions and decisions or determinations of the Shareholder Representative Representatives, in 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 Escrow Agreement shall survive the Closing and/or any termination of this Agreement, including, without limitation, the indemnification obligations except that such powers (but not immunities) shall terminate upon termination of the Shareholders under Section 6.03, including the defense this Agreement.
(h) In connection with his or settlement of any claims or the making of payments by the its appointment as a Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPand 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 the 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., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint The parties agree that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇is hereby appointed as the joint representative for and on behalf of the shareholders of Waterloo (such Persons, and any other Person duly appointed pursuant to this Agreement, serving as such a representative, the “Shareholder Representative”) to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the terms of this Agreement upon and after the Closing Date. ▇▇▇▇▇▇▇ DATED DECEMBER ___No bond shall be required of the Shareholder Representative, 1999]and the Shareholder Representative shall not be entitled to receive any compensation for his or her services except as otherwise set forth in this Section 3.5. Notices of communications to or from 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 chosen by the holders of a majority of the shares of Waterloo Common Stock.
(b) Reasonable and necessary fees and expenses incurred by the Shareholder Representative, in 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 advice of counsel shall be conclusive evidence of such good faith. The shareholders of Waterloo shall jointly and severally indemnify the Shareholder Representative and hold him or her harmless against any loss, liability or expense incurred without bad faith, gross negligence or willful misconduct and arising out of or in connection with the acceptance or administration of his or her duties. The Shareholder Representative may consult with legal counsel and other necessary experts to advise it with respect to its rights and obligations hereunder and shall be fully protected by any act taken, suffered, permitted or omitted in good faith in accordance with the advice of such counsel 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) In order The parties have agreed that, effective as of the date of this Agreement, it is desirable to administer designate the transactions contemplated by Shareholder Representative as a representative to act on behalf of the Company Equityholders for certain limited purposes, as specified herein. The approval of this Agreement by the Company Equityholders shall constitute ratification and approval of such designation. The Shareholder Representative may resign at any time, and the Escrow Shareholder Representative may be removed by the vote of the holders of Company Ordinary Shares which collectively hold at such time (or, following the Closing, held immediately prior to the Effective Time) more than fifty percent (50%) of the outstanding Company Ordinary Shares (the “Majority Equityholders”). In the event that the Shareholder Representative has resigned or been removed, a new Shareholder Representative shall be appointed by a vote of the Majority Equityholders, such appointment to become effective upon the written acceptance thereof by the new Shareholder Representative.
(b) The Shareholder Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, includinghowever, without limitationthat the Shareholder Representative shall have no obligation to act on behalf of the Company Equityholders and CVR Holders, except as expressly provided herein. Without limiting the generality of the foregoing, the indemnification obligations of the Shareholders under Section 6.03Shareholder Representative shall have full power, the Shareholders hereby designate authority and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for discretion to (i) expend Shareholder Allocable Expenses, (ii) negotiate and enter into amendments to this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacitythe Company Equityholders and CVR Holders, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or exercise on behalf of the Shareholders by Company Equityholders and CVR Holders all rights granted to the Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves3.7, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same(iv) act as a representative of Parent Indemnifying Parties under Section 9.5. The Shareholder Representative shall incur have no liability Liability to Parent, Merger Sub, the Shareholders Company (or, following the Effective Time, the Surviving Company) or any Company Equityholder or CVR Holder with respect to any action actions taken or suffered by omitted to be taken in its capacity as the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims and the making of payments with respect thereto, (except to the extent resulting from Company Equityholders and CVR Holders for those actions arising out of the Shareholder Representative's own ’s bad faith or willful misconduct or negligencemisconduct). The Shareholder Representative may, in shall at all questions arising under this Agreement or the Escrow Agreement times be entitled to rely on any directions received from the advice of counselMajority Equityholders; provided, and for anything donehowever, omitted or suffered in good faith by that the Shareholder Representative shall not be liable required to follow any such direction, and shall be under no obligation to take any action in its capacity as the Shareholders.
(e) The Surviving CorporationShareholder Representative, unless the Parent and Shareholder Representative is holding funds delivered to it under Section 3.12 and/or has been provided with other funds, security or indemnities which, in the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative with respect to this Agreement against the costs, expenses and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments Liabilities which may be incurred by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent in responding to such direction or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake taking such action. The Shareholder Representative agrees shall be entitled to indemnify engage such counsel, advisors, experts and hold harmless each other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party bad faith on the actions part of the Shareholder Representative hereunder. For Representative) shall be entitled to conclusively rely on the avoidance opinions and advice of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03such Persons. The Shareholders hereby confirm that Shareholder Representative shall be entitled to reimbursement from funds paid to it under Section 3.12, released from the Adjustment Escrow Agent is an intended third party beneficiary Account for the benefit of the terms of this Section Company Equityholders (other than Pathfinder) and may enforce such Section CVR Holders and/or otherwise received by it in its own right and name.
(f) The Shareholders acknowledge and agree that capacity as the Shareholder Representative may incur costs pursuant to or in connection with this Agreement, for all reasonable expenses, disbursements and expenses on behalf advances (including fees and disbursements of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representativeits counsel, promptly upon demand advisors, experts and other agents and consultants) incurred by the Shareholder Representative thereforin such capacity, and shall be entitled to indemnification (A) first, from funds paid to it under Section 3.12, and (B) second, from the Company Equityholders (other than Pathfinder) and CVR Holders against any loss, Liability or expenses arising out of actions taken or omitted to be taken in its capacity as the Shareholder Representative (except for those arising out of the Shareholder Representative’s bad faith or willful misconduct), including the costs and expenses of investigation and defense of claims. In the event that the Shareholder Allocable Expenses exceed the amount actually incurred by the Shareholder Representative in its capacity as such, upon the final release of funds from the Adjustment Escrow Account and shares from the Indemnity Escrow Account in accordance with the terms of the Escrow Agreement, the Shareholder Representative shall deliver (1) to the Paying Agent (for payment to each holder of Company Ordinary Shares) a percentage of any expenses cash payment in an amount equal to the product of (x) such Shareholder's ownership interest in excess amount, multiplied by (y) the Company immediately prior Ordinary Shares Percentage, (2) to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPSurviving Company (for payment to each Optionholder) a cash payment in an amount equal to the product of (x) such excess amount, multiplied by (y) the Option Percentage and (3) to ECI BV a cash payment in an amount equal to the product of (x) such excess amount multiplied by (y) the CVR Percentage., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement The Shareholder Representative is hereby constituted and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ appointed as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, Company Shareholders with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 sameArticle VIII. The Shareholder Representative shall incur no liability to the Indemnifying Shareholders with respect to any action taken or suffered by the Shareholder Representative he, she or it in reliance upon any noticenote, direction, instruction, consent, statement or other documents believed by him he, she or it to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03except his, including the defense her or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's its own willful misconduct or gross negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement Agreement, rely on the advice of counsel, 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 shall not be liable to the Shareholdersbased on such advice.
(eb) The Surviving Corporation, In the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions event of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense death or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions permanent disability of the Shareholder Representative. If the , or his, her or its resignation as an Shareholder Representative, a successor Shareholder Representative undertakes any action hereunder in his capacity as shall be elected by a majority vote of the Indemnifying Shareholders, with each such Indemnifying Shareholder (or his, her or its successors or assigns) to be given a vote equal to the number of votes represented by the shares of stock of the Company held by such Indemnifying Shareholder immediately prior to the Merger Effective Time. 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 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 writing by each of them. Without limiting the generality of the foregoing, the Shareholder Representative shall be deemed have full power and authority to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary interpret all of the terms and provisions of this Section Article VIII, to compromise any claims asserted hereunder and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that to authorize any release of the Shareholder Representative may incur costs and expenses Escrow Shares to be made with respect thereto, on behalf of the Indemnifying Shareholders in her capacity as Shareholder Representativeand their successors. Each of the Shareholders agrees All actions to pay the Shareholder Representative, promptly upon demand be taken by the Shareholder Representative thereforhereunder shall be evidenced by, and taken upon, the written direction of a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPmajority thereof., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the The Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement agent and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"), for and on behalf of the Shareholders, to give and receive notices and communications, to object to claims pursuant to Section 7.5, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and of arbitrators with respect to such objections, and to take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing. Said power 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 Shareholders that held at least two-thirds of attorney the Shares immediately prior to the Closing agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Shareholder Representative may be filled by Shareholders that held a majority of the Shares immediately prior to the Closing. No bond shall be coupled with an interest required of the Shareholder Representative, and the Shareholder Representative shall be irrevocablenot receive compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to for any act done or omitted hereunder as the Shareholders.
(e) Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Surviving CorporationShareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, the Parent and the Escrow Agent are hereby authorized to rely conclusively liability or expense incurred without negligence or bad faith on the actions, instructions and decisions part of the Shareholder Representative and arising out of or in connection with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense acceptance or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions administration of the Shareholder Representative. If 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder Representative shall be deemed to make constitute a representation to each decision of the Surviving CorporationShareholders and shall be final, binding and conclusive upon the Parent Shareholders; and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake Purchaser may rely upon any such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporationdecision, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions act, consent or instruction of the Shareholder Representative hereunderas being the decision, act, consent or instruction of the Shareholders. For the avoidance of doubt, it Purchaser is hereby acknowledged that the indemnity obligation under this Section is not subject relieved from any liability to the limitations set forth any person for any acts done by it in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary accordance with such decision, act, consent or instruction of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement Each Existing Shareholder hereby covenants and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇agrees that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is hereby fully and exclusively authorized, empowered and appointed to serve as their his sole representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Existing Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative diesactions, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations execution, delivery and performance of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations dated as of the Shareholders under Section 6.03Closing Date, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunderand among City, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and SouthTrust Bank ("Escrow Agreement"), ▇▇▇▇▇▇▇ ▇and to make any and all decisions and determinations, which may be required or permitted to be taken or made pursuant to any of the provisions of the Escrow Agreement by the Existing Shareholders, to perform all of the obligations of the Existing Shareholders required or permitted to be performed thereunder, and to execute, deliver and perform on behalf of the Existing Shareholders any and all amendments thereto. ▇▇▇▇▇▇▇▇▇Any such action, ▇▇▇▇▇▇▇ ▇decision or determination taken or made by the Existing Shareholder Representative and any such amendment, shall be absolutely and irrevocably binding on each Existing Shareholder as if such Existing Shareholder had personally taken such action or made such decision or determination in his individual (or, as applicable, fiduciary) capacity.
(b) Each Existing Shareholder hereby irrevocably makes, constitutes and appoints the Existing Shareholder Representative as his true and lawful proxy and attorney-in-fact, with full power of substitution, to act with respect to the Escrow Agreement. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇By granting this proxy, the Existing Shareholder hereby revokes any other proxy granted by him to vote or act by written consent with respect to the Escrow Agreement. ▇▇▇▇▇▇▇ DATED DECEMBER ___All power and authority hereby conferred by the Existing Shareholder in this subsection (b) is coupled with an interest and is irrevocable, 1999]shall not be terminated by any act of the Existing Shareholder or by operation of law, by death, incapacity or dissolution, by lack of appropriate power or authority, or by the occurrence of any other event or events, and shall be binding upon all beneficiaries, heirs, legatees, distributees, successors, assigns and legal representatives of such Existing Shareholder. If after the execution of the Escrow Agreement, an Existing Shareholder shall die or become incapacitated or cease to have appropriate power or authority, or if any other such event or events shall occur, the Existing Shareholder Representative, acting as provided herein, is nevertheless authorized to act with respect to the Escrow Agreement) in accordance with the terms of the Escrow Agreement as if such death, incapacity, lack of appropriate power or authority or other event or events had not occurred and regardless of notice thereof.
Appears in 1 contract
Sources: Asset Contribution Agreement (City Truck Holdings Inc)
Shareholder Representative. (a) In order to administer Each Target Shareholder, by the transactions contemplated by execution and delivery of this Agreement and the Escrow Agreement, including, without limitation, hereby consents and agrees to the indemnification obligations appointment of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative the “Shareholder Representative” for purposes of all matters expressly set forth in this Agreement to be performed by the Shareholder Representative. As to any matter not expressly provided for by this Agreement, the Shareholder Representative shall not be required to exercise any discretion or to take any action that exposes the Shareholder Representative to personal liability or that is contrary to this Agreement or applicable law. The Shareholder Representative shall be deemed to continue in office notwithstanding any purported resignation or removal until Acquiror receives written notice signed by the Target Shareholders that held a majority of the Target Common Stock immediately prior to the Effective Time designating a new Shareholder Representative that is reasonably acceptable to Acquiror. Each Target Shareholder hereby constitutes and appoints the Escrow Agreement and Shareholder Representative, including any replacement of any such Shareholder Representative, as attorney-in-fact and agent for and on behalf of each such Target Shareholder (in such capacity, the "Shareholder Representative"). Said with full power of attorney substitution and authority, in his discretion, to enforce this Agreement against the parties hereto, and to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and receive notices and communications and, without limiting the foregoing provisions of this Section 7.10, dispute any decision of Acquiror to pay itself or any Indemnitee hereunder, to agree to, negotiate, enter into settlements and compromises of, and to comply with orders of courts with respect to any dispute or loss, and to take all actions necessary or appropriate in the reasonable judgment of the Shareholder Representative for the accomplishment of the foregoing. The Shareholder Representative shall be coupled with an interest and entitled to consent to any payment from the Hold Back Amount or Aggregate Earn-Out Consideration to Acquiror. The Target Shareholders shall be irrevocableresponsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative in performing his duties under this Agreement. The Shareholder Representative shall not use or disclose any non-public information.
(b) Each Shareholder hereby authorizes All decisions of the Shareholder Representative to represent each Shareholdermay be relied upon by Acquiror and any third person, and their successors, with respect to all matters arising under this Agreement shall be binding and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreementconclusive upon each Target Shareholder.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted The Shareholder Representative shall not be deemed liable, responsible or accountable in damages or otherwise to be the Target Shareholders for any loss or damage incurred by reason of any act or failure to act by such Shareholder Representative, and each Target Shareholder shall indemnify and hold harmless the Shareholder Representative for all purposes against any loss or damage except to the extent that such loss or damage shall have been the result of this Agreement and the Escrow Agreement. Upon the occurrence individual gross negligence or willful misconduct of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to hereby agrees that all information now or hereafter received from Acquiror will be used solely for the Shareholders with respect to any action taken or suffered by purpose of performing the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations functions of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause that such information, except as required by law, will be kept confidential by the Shareholder Representative and the Shareholder Representative’s legal counsel and accountants who need to know such information for the purpose of action against assisting in the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions performance of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative ’s functions hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___as the representative for and on behalf of the Shareholders (the “Shareholder Representative”) to take all actions necessary or appropriate in the judgment of the Shareholder Representative to all such matters as mutually agreed to by the Shareholders and set forth in an instrument of appointment executed by the Shareholders prior to the Closing. The holders of a majority of the Shares may replace or remove any Person serving as the Shareholder Representative upon not less than ten (10) days’ prior written notice to Parent. No bond shall be required of the Shareholder Representative, 1999]and the Shareholder Representative shall not receive any compensation for its services. 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 chosen by the holders of a majority of the Shares. At Closing, Parent shall pay the amount of the Option Exercise Proceeds by wire transfer of immediately available funds to the account designed by the Shareholder Representative. Such amount shall be used by the Shareholder Representative to cover its fees and expenses in connection with its duties as Shareholder Representative. Any amount not so used by the Shareholder Representative prior to the Termination Date shall be contributed to the Indemnity Escrow Fund for pro rata distribution to the Common Holders and Option Holders in connection with the distribution of the Indemnity Escrow Fund.
(b) 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 advice of counsel shall be conclusive evidence of such good faith. The Shareholders shall jointly and severally indemnify the Shareholder Representative and hold him harmless against any loss, liability or expense incurred without bad faith and arising out of or in connection with the acceptance or administration of his duties. In furtherance thereof, the Shareholders each agrees to deposit an amount mutually agreed to by the Shareholders in escrow for use by the Shareholder Representative. The Shareholder Representative may consult with counsel and other experts to advise him with respect to his rights and obligations hereunder and shall be fully protected by any act taken, suffered, permitted, or omitted in good faith in accordance with the advice of such counsel or experts.
(c) Any decision, act, consent or instruction of the Shareholder Representative in the scope of the Shareholder Representative’s authority as provided in the first sentence of Section 9.15(a) shall constitute a decision of all Shareholders and shall be final, binding and conclusive upon every Shareholder, and the Escrow Agent, and Parent may rely upon any decision, act, consent or instruction of the Shareholder Representative.
(d) The provisions of this Section 9.15 are intended to be for the benefit of and shall be enforceable by any Person serving as Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Shareholder Representative. The holders of the outstanding shares of the capital stock of the Company, by virtue of the execution and delivery of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the date of this Agreement, ________ (a) In order together with his permitted respective successors, collectively, the “Shareholder Representative”), as their true and lawful agent and attorney-in-fact, and the Shareholder Representative, by his execution of this Agreement shall be deemed to administer have accepted such appointment, to enter into any agreement in connection with the transactions contemplated by this Agreement Agreement, to exercise all or any of the powers, authority and discretion conferred on him under any such agreement, to act as proxy for each Company Shareholder in connection with any shareholder approvals required in connection with the Escrow transactions contemplated by this Agreement, to waive or modify any terms and conditions of any such agreement, 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 Shareholder or SOLS may be entitled to indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement Shareholder Representative agrees to act as, and as to undertake the duties and responsibilities of, such agent and attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative")fact. Said This power of attorney shall be is coupled with an interest and shall be is irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to for any action taken or not taken by him in his capacity as Shareholder Representative either (i) with the Shareholders.
(e) The Surviving Corporationconsent of Shareholders who, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions as of the Shareholder Representative with respect to date of this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations own a majority in number of the Shareholders under Section 6.03outstanding shares of Company Stock (considered on an as converted basis), including or (ii) in the defense or settlement absence of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representativehis own willful misconduct. If the Shareholder Representative undertakes shall be unable or unwilling to serve in 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 Date who shall serve and exercise the powers of Shareholder Representative hereunder. Solely with respect to any action hereunder actions taken by the Shareholder Representative in his capacity as a Shareholder Representativesuch, the Shareholder Representative shall be deemed have no liability to make a representation to each SOLS, or any of its affiliates except for claims based upon fraud by the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999SIGNATURES CONTINUED ON NEXT PAGE]
Appears in 1 contract
Sources: Share Acquisition Agreement
Shareholder Representative. Matt d'Arbeloff (aor another person -------------------------- designated by Seller in writing to Buyer) In order shall, by virtue of resolutions to administer be adopted by the transactions contemplated by this Agreement and the Escrow Agreementstockholders of Seller, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as be irrevocably appointed attorney-in-fact and agent authorized and empowered to act, for and on behalf of each Shareholder any or all of the shareholders of Seller (with full power of substitution) in connection with the notice provisions of this Agreement, the Escrow Agreement, the Registration Rights Agreement, and such capacityother matters as are reasonably necessary for the consummation of the transactions contemplated hereby, including to act as the representative of such shareholders to review and authorize all claims and other payments under the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Buyer any claims asserted thereunder and to authorize payments to be made with respect thereto, and to take such further actions as are authorized in this Agreement. The above-named representative, as well as any subsequent representative of the shareholders of Seller appointed by such representative (or, after such representative's death or incapacity, elected by vote of the holders of a majority of capital stock of Seller outstanding immediately prior to the consummation of the transactions contemplated hereby), is referred to herein as the "Shareholder Representative"). Said power Notwithstanding anything in this Agreement to the contrary, Buyer and each of attorney its respective affiliates shall be coupled with an interest entitled to rely on such appointment and shall be irrevocable.
(b) Each Shareholder hereby authorizes treat the Shareholder Representative to represent as the duly appointed attorney-in-fact of each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations shareholder of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 sameSeller. The Shareholder Representative shall incur no liability not be liable to the Shareholders any stockholder of Seller, Seller, Buyer or any other person with respect to any action taken or suffered omitted to be taken by the Shareholder Representative under or in connection with this Agreement, the Escrow Agreement or the Registration Rights Agreement, unless such action or omission results from or arises out of fraud, willful misconduct, bad faith or gross negligence on the part of the Shareholder Representative. The shareholders of Seller shall severally indemnify and hold the Shareholder Representative harmless against any loss, liability or expense incurred without fraud, willful misconduct, bad faith or gross negligence on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the duties of the Shareholder Representative hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative, and shall reimburse the Shareholder Representative for all reasonable expenses, including without limitation reasonable legal fees and expenses, incurred by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction connection with respect to the indemnification obligations administration of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions duties of the Shareholder Representative hereunder. For the avoidance of doubt, it It is hereby acknowledged agreed that any such loss, liability or expense may be paid out of the indemnity obligation escrow proceeds to which the shareholders of Seller are entitled under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and nameAgreement.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer The Major Shareholders hereby irrevocably constitute and appoint ATS AS in the transactions contemplated by capacity as the Shareholder Representative under this Agreement and the Escrow AgreementAncillary Documents to which the Shareholder Representative is a party or otherwise has rights in such capacity (the “Shareholder Representative Documents”), including, without limitation, as the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate true and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement lawful agent and the Escrow Agreement and as attorney-in-fact of such Major Shareholder with full powers of substitution to act in the name, place and agent for and stead thereof with respect to the performance on behalf of each such Major Shareholder (under the terms and provisions of the under the terms and provisions of the Shareholder Representative Documents, as the same may be from time to time amended, and to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of such Major Shareholder, if any, as the Shareholder Representative will deem necessary or appropriate in such capacity, connection with any of the "transactions contemplated by the Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocableRepresentative Documents.
(b) Each Shareholder hereby authorizes Any other Person, including the Purchaser Representative, Pubco, Merger Subs, Purchaser and the Company may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and as the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations acts of the Major Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement Documents. The Purchaser Representative, Pubco, Merger Subs, Purchaser and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized entitled to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect as to this Agreement and (i) any payment instructions provided by the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense Shareholder Representative or settlement of (ii) any claims other actions required or the making of payments permitted to be taken by the Shareholder Representative hereunder, and and, in accordance with the Major Shareholder Irrevocable Undertakings, no party hereunder shall Major Shareholder will have any cause of action against the Surviving CorporationPurchaser Representative, the Parent Pubco, Merger Subs, Purchaser, or the Escrow Agent to the extent such parties have relied Company for any action taken by any of them in reliance upon the actions, instructions or decisions of the Shareholder Representative. All notices or other communications required to be made or delivered to a Major Shareholder under any Shareholder Representative Document shall be made to the Shareholder Representative for the benefit of such Major Shareholder, and any notices so made shall discharge in full all notice requirements of the other parties hereto or thereto to such Major Shareholder with respect thereto. All notices or other communications required to be made or delivered by a Major Shareholder shall be made by the Shareholder Representative (except for a notice under Section 15.14(c) of the replacement of the Shareholder Representative).
(c) If the Shareholder Representative undertakes shall die, become disabled, resign or otherwise be unable or unwilling to fulfill his, her or its responsibilities as representative and agent of the Major Shareholders, then in accordance with the Major Shareholder Irrevocable Undertaking, the Major 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 Major Shareholders holding in the aggregate in excess of fifty percent (50%) of the Exchange Shares held by all Major Shareholders), and promptly thereafter notify the Purchaser Representative, Purchaser and Pubco in writing of the identity of such successor. Any such successor so appointed shall become the “Shareholder Representative” for purposes of this Agreement and the other Shareholder Representative Documents.
(d) The Shareholder Representative shall not be liable for any action hereunder act done or omitted under this Agreement or any Ancillary Document as the Shareholder Representative while acting in his good faith and without willful misconduct or gross negligence, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each of the Major Shareholders shall jointly and severally indemnify, defend and hold harmless the Shareholder Representative from and against any and all losses, Actions, Orders, Liabilities, damages, amounts paid in settlement, costs and expenses (including reasonable expenses of investigation and court costs and reasonable attorney’s fees and expenses) incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholder Representative (in its capacity as a such) and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties under this Agreement or any Ancillary Document, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative. In no event shall the Shareholder Representative in such capacity be liable hereunder or 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 rights and obligations hereunder, the Shareholder Representative shall be deemed have the right at any time and from time to make a representation time to each select and engage, at the cost and expense of the Surviving CorporationMajor Shareholders, the Parent attorneys, accountants, investment bankers, advisors, consultants and the Escrow Agent that clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Shareholder Representative is authorized hereunder may deem necessary or appropriate from time to undertake such actiontime. The All of the indemnities, immunities, releases and powers granted to the Shareholder Representative agrees under this Section 15.14(d) shall survive the Closings and continue indefinitely. With respect to indemnify any claim or cause of action arising out of, or related to any act or omission by the Shareholder Representative based upon, arising out of, or related to this Agreement, this Agreement may only be enforced against the Shareholder Representative, and hold harmless each not any of the Surviving Corporationofficers, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions directors, securityholders, employees or Affiliates of the Shareholder Representative hereunder. For (the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the “Shareholder Representative may incur costs and expenses on behalf Related Parties”). No Shareholder Representative Related Party shall have any liability for any obligations or liabilities of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand including but not limited to, for any claim based on, in respect of, or by reason of, any failure by the Shareholder Representative therefor, a percentage of the transactions contemplated by this Agreement to be consummated or any expenses equal breach or failure of the Shareholder Representative to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPperform hereunder., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Business Combination Agreement (Alussa Energy Acquisition Corp.)
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.035.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall granted -------------------------- herein is deemed to be coupled with an interest in the Company Common Stock, shall be irrevocable and shall be irrevocablesurvive the death, disability or bankruptcy of any Shareholder or any such Shareholder's spouse, if any.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their theirs successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.035.03 hereof, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his or her responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger Closing shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he or she were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving CorporationBuyer, the Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.035.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him or her to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.035.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving CorporationBuyer, the Company, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.035.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving CorporationBuyer, the Company, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving CorporationBuyer, the Company, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative Representative, in her individual capacity and not as attorney-in-fact and agent for and on behalf of each Shareholder, agrees to indemnify and hold harmless each of the Surviving CorporationBuyer, the Company, the Parent and the Escrow Agent Agreement for any Loss Damages suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunderhereunder (the "Shareholder ----------- Representative Indemnity"). Such indemnification shall be subject to the ------------------------ procedure set forth in Section 5.04 of this Agreement. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.035.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her his capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the MergerClosing.
(g) Each Shareholder hereby agrees to indemnify the Shareholder Representative and hold her harmless from and against any and all Damages arising out of or resulting from (i) the Shareholder Representative Indemnity or (ii) any and all of her actions taken and omissions made in her capacity as Shareholder Representative; provided, however, that the amount payable by a Shareholder to the Shareholder Representative pursuant to this Section 8.09(g) at any time shall not exceed the maximum amounts payable by such Shareholder at such time pursuant to Section 5.03. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPThe foregoing indemnity and hold harmless obligation (i) is given to the Shareholder Representative in her capacity as attorney-in-fact and agent for and on behalf of the Shareholders, and not in her individual capacity as a Shareholder, and (ii) shall be the Shareholder Representative's exclusive remedy against such Shareholder with respect to any facts or circumstances giving rise to an indemnification right hereunder., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and event the Escrow AgreementShareholder Representative shall die or resign or otherwise terminate his status as such, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇his successor shall be Bern▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ such other person as their representative for this Agreement and the Escrow Agreement and Shareholder Representative may appoint. If the successor Shareholder Representative shall die or resign or otherwise terminate his status as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacitysuch, the "Shareholder Representative"). Said power of attorney his successor shall be coupled with an any person appointed by such successor Shareholder Representative or, in the case of his failure to appoint a successor after a vacancy has been created, elected by the vote or written consent of a majority in interest and of the Shareholders. All decisions of the Shareholder Representative shall be irrevocablebinding upon the Shareholders. The Shareholder Representative shall keep the Shareholders reasonably informed of his or her material decisions.
(b) Each Shareholder hereby authorizes the The Shareholder Representative is authorized to represent each Shareholdertake any action deemed by him appropriate or necessary to carry out the provisions of, and their successors, with respect to all matters arising under this Agreement and determine the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations rights of the Shareholders under Section 6.03, including, this Agreement. The Shareholder Representative shall serve as the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf agent of the Shareholders by for all purposes related to this Agreement, including without limitation service of process upon the Shareholders. By execution of this Agreement, the Shareholder Representative pursuant accepts and agrees to diligently discharge the duties and responsibilities of the Shareholder Representative set forth in this Agreement without compensation for his services hereunder. The authorization and designation of the Shareholder Representative under this Section 7(b) shall be binding upon the successors and assigns of each Shareholder. The Buyer and the Escrow AgreementAgent shall be entitled to rely upon such authorization and designation and shall be fully protected in dealing with the Shareholder Representative, and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the Shareholder Representative.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute The Shareholder Representative dies(i) shall not be liable to any of the Shareholders for any error of judgment, becomes unable or action taken or omitted in good faith, or mistake of fact or law unless caused by his own gross negligence or willful misconduct, (ii) shall be entitled to perform his responsibilities treat as Shareholder Representative genuine any letter or resigns from such positionother document furnished to him by the Buyer, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and or the Escrow Agent and believed by him to be genuine and to have been signed and presented by the proper party or parties and (iii) shall indicate the identity be reimbursed from any portions of the substitute Shareholder Representative, who shall have agreed Escrow Fund otherwise immediately deliverable to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims this Agreement for counsel fees and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered other out-of-pocket expenses incurred by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction connection with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the ShareholdersAgreement.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Escrow Agreement (Blais John F Jr)
Shareholder Representative. (a) In order The Shareholder Representative shall be constituted and appointed as agent for and on behalf of each Shareholder to administer execute and deliver the transactions contemplated Escrow Agreement, to give and receive notices and communications, to agree to, negotiate and enter into, on behalf of the Shareholders, as applicable, amendments, consents and waivers under this Agreement and the Escrow Agreement, pursuant to the terms set forth herein and therein, to make and receive payments on behalf of the Shareholders pursuant to the terms set forth herein and the Escrow Agreement, to take such other actions as authorized by this Agreement and the Escrow Agreement, including, without limitation, and to take all actions necessary or appropriate in the indemnification obligations judgment of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative for the accomplishment of the foregoing. Such agency may be changed by a vote or written consent by the holders of a majority of the Company’s capital stock, voting in the same manner as would have been voted in accordance with the organizational documents of the Company as in effect at the time of such vote, or if such vote occurs after the Closing Date, as in effect immediately prior to represent each Shareholderthe Closing Date (the “Majority Shareholders”), and their successorsfrom time to time upon not less than ten days’ prior written notice to Purchaser. If at any time the Shareholder Representative resigns or becomes incapable of acting, the holders of a majority of the Company’s capital stock, voting in the same manner as would have been voted in accordance with respect the organizational documents of the Company as in effect at the time of such vote, or if such vote occurs after the Closing Date, as in effect immediately prior to all matters arising the Closing Date shall choose another Person, to act as the Shareholder Representative under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders . The Company Indemnified Persons may not make a claim for indemnity against Purchaser under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by 9.3 except through the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to may enforce, prosecute and settle any action taken or suffered by the Shareholder Representative in reliance upon such claim without 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 6.03, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting directions from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counselCompany Indemnified Persons, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions all acts and decisions of the Shareholder Representative in connection with respect such matter shall be binding on all the Company Indemnified Persons. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for its services. Notices or communications to this Agreement or from the Shareholder Representative shall constitute notice to or from each of the Shareholders.
(b) The Shareholder Representative will be entitled to engage such counsel, accountants, experts and other agents as the Shareholder Representative deems necessary or proper in connection with performing its obligations hereunder and under the Escrow Agreement, including, without limitation, the indemnification obligations of and will be promptly reimbursed by the Shareholders under Section 6.03for all reasonable expenses, including the defense or settlement of any claims or the making of payments disbursements and advances incurred by the Shareholder Representative hereunderin such capacity upon demand, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent pro rata based upon each such parties have relied upon the actions, instructions or decisions holder’s pro rata share of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity total outstanding shares of Company Common Stock as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]the
Appears in 1 contract
Sources: Merger Agreement (Clarcor Inc)
Shareholder Representative. (a) In order Immediately upon receipt of the Requisite Shareholder Approvals, each Participating DMG Shareholder shall be deemed to have irrevocably appointed, authorized and directed Shareholder Representative Services LLC to act as the Shareholder Representative, as such Participating DMG Shareholder’s agent, representative and attorney-in-fact. The Shareholder Representative shall, on behalf of the Participating DMG Shareholders (i) give and receive notices and communications, (ii) review, negotiate, agree to and settle claims and disputes relating to indemnified amounts, (iii) object to such deliveries, agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of Governmental Authorities and awards of arbitrators with respect to such claims, (iv) execute and deliver payment and other instructions to the Escrow Agent pursuant to the terms hereof and the Escrow Agreement, (v) hold, apply and administer the transactions contemplated Expense Fund, (vi) take all actions necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing and (vii) perform other functions specified in this Agreement. Any notices delivered to the Shareholder Representative pursuant to this Agreement shall be deemed delivered to the Participating DMG Shareholders. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of all Participating DMG Shareholders and shall be final, binding and conclusive upon each such Participating DMG Shareholder, and the Escrow Agent and VisionChina and their respective Affiliates may rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and every such Participating DMG Shareholder. The Escrow Agent, VisionChina and their respective Affiliates 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. Notwithstanding anything to the contrary set forth herein, the Shareholder Representative shall have no authority to enter into any settlement agreement or other instrument that includes any admission of guilt or wrongdoing by any Participating DMG Shareholder without the prior written consent of such Participating DMG Shareholder. In connection with the foregoing appointment of Shareholder Representative Services LLC as the Shareholder Representative, each Participating DMG Shareholder hereby agrees to receive correspondence, in electronic form or otherwise, from the Shareholder Representative.
(b) The Shareholder Representative, individually, may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Participating DMG Shareholders representing a majority interest in the Escrow Fund (the “Majority Holders”); provided, however, that no such resignation or removal shall be effective until a new Shareholder Representative, who shall be reasonably able to perform the duties of the Shareholder Representative hereunder and reasonably satisfactory to VisionChina (which determination of satisfaction shall not be unreasonably withheld or delayed), has been appointed and such new Shareholder Representative agrees in writing delivered to VisionChina to be bound by the terms of this Agreement and the Escrow Agreement that relate to the Shareholder Representative. Subject to compliance with the foregoing proviso, in the event of resignation or removal of the 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 a new Shareholder Representative shall be sent to VisionChina and, after the Effective Time, to the Surviving Corporation, such appointment to be effective (subject to compliance with the proviso in the first sentence of this Section 4.8(b)) upon the later of the date indicated in such consent or the date such consent is received by VisionChina and, after the Effective Time, the Surviving Corporation. Notwithstanding the foregoing, the Shareholder Representative may resign 30 days after giving notice to the Majority Holders, but only insofar as a replacement has been selected by the Majority Holders in accordance with the foregoing.
(c) The approval of this Agreement by the Requisite Shareholder Approvals shall also be deemed to constitute approval of and agreement to the provisions hereof binding upon the Participating DMG Shareholders, including, without limitation, Article VII hereof.
(d) In performing the functions specified in this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to any Participating DMG Shareholder in the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively absence of gross negligence or willful misconduct on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions part of the Shareholder Representative. If the Each Participating DMG Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to severally (based on each such Participating DMG Shareholder’s respective allocation of the Surviving CorporationMerger Consideration), the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to not jointly, indemnify and hold harmless each of the Surviving CorporationShareholder Representative from and against any loss, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party liability or expense incurred without gross negligence or willful misconduct on the actions part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other costs reasonably incurred by the Shareholder Representative. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is If not subject paid directly to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf out of the Shareholders in her capacity as Shareholder Representative. Each of Expense Fund or otherwise by the Shareholders agrees to pay the Shareholder RepresentativeParticipating DMG Shareholders, promptly upon demand such losses, liabilities or expenses may be recovered by the Shareholder Representative therefor, from the Escrow Amount otherwise distributable to the Participating DMG Shareholders (and not distributed or distributable to any Indemnified Person or subject to a percentage pending indemnification claim of any expenses equal to such Shareholder's ownership interest in Indemnified Person) following the Company immediately prior Escrow Release Date pursuant to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORPterms hereof and the Escrow Agreement at the time of distribution., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Agreement and Plan of Merger (Visionchina Media Inc.)
Shareholder Representative. (a) In order By virtue of their approval of this Agreement, the shareholders of Target Corporation will be deemed to administer have irrevocably constituted and appointed, effective as of the transactions contemplated Closing, the Shareholder Representative as the representative and attorney-in-fact for and on behalf of the shareholders, and to the taking by the Shareholder Representative of any and all actions and the making of any decisions required or permitted to be taken by her under this Agreement and or the Escrow Agreement, including, without limitation, the indemnification obligations exercise of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder power to (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(bi) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement and execute the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to give and receive all notices required to be given under this Agreement or the Escrow Agreement and any indemnification claim, (iii) resolve any indemnification claim, including claims relating to *** and (iv) take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest actions necessary in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be judgment of the Shareholder Representative for the accomplishment of the foregoing and all purposes of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Upon the occurrence of such eventAccordingly, the Shareholders shall provide written notice Shareholder Representative has unlimited authority and power to the Surviving Corporation, the Parent act on behalf of each shareholder of Target Corporation with respect to this Agreement and the Escrow Agent Agreement and shall indicate the identity disposition, settlement or other handling of the substitute Shareholder Representativeall indemnification claims, who shall have agreed rights or obligations arising from and taken pursuant to the terms this Agreement. The shareholders of this Section as if he were a party hereto.
(d) All decisions and Target Corporation will be bound by all actions taken by the Shareholder RepresentativeRepresentative in connection with this Agreement, including, without limitation, and Acquiring Corporation and Newco shall be entitled to rely on any agreement between action or decision of the Shareholder Representative and the Surviving Corporation, Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 sameRepresentative. The Shareholder Representative shall will incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative her in reliance upon any notice, direction, instruction, consent, statement or other documents document believed by him her to be genuinely genuine and duly authorizedto have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims and the making of payments with respect theretoinaction, except to the extent resulting from the Shareholder Representative's her own willful misconduct or negligencebad faith. The Shareholder Representative may, in In all questions arising under this Agreement or the Escrow Agreement Agreement, the Shareholder Representative may rely on the advice of counsel, and the Shareholder Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable based on such advice. Except as expressly provided herein, *** Indicates portions of this exhibit that have been omitted and filed separately with the Securities and Exchange Commission pursuant to the Shareholders.
(e) The Surviving Corporation, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of a request for confidential treatment. the Shareholder Representative with respect will not be required to take any action involving any expense, other than as required by this Agreement and or the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving Corporation, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving Corporation, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Surviving Corporation, the Parent and the Escrow Agent for any Loss suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Shareholder Representative. (a) In order to administer the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as their representative for this Agreement and the Escrow Agreement and as attorney-in-fact and agent for and on behalf of each Shareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall granted -------------------------- herein is deemed to be coupled with an interest in the Company Common Stock, shall be irrevocable and shall be irrevocablesurvive the death, disability or bankruptcy of any Shareholder or any such Shareholder's spouse, if any.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their theirs successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including, without limitation, (i) to take all action necessary in connection with the indemnification obligations of the Shareholders under Section 6.036.03 hereof, including, the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow 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 Shareholder Representative pursuant to this Agreement and the Escrow Agreement.
(c) In the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any substitute Shareholder Representative dies, becomes unable to perform his or her responsibilities as Shareholder Representative or resigns from such position, the Shareholders having an aggregate of 50% ownership interest in the Company immediately prior to the Merger Closing shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Surviving Corporation, the Parent and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he or she were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Surviving CorporationMerger Subsidiary, the Parent or Escrow Agent relating to the indemnification obligations of the Shareholders under Section 6.03, including, the defense or settlement of any claims and the making of payments 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 shall incur no liability to the Shareholders with respect to any action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him or her to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 6.03, 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 all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative shall not be liable to the Shareholders.
(e) The Surviving CorporationMerger Subsidiary, the Company, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the Shareholder Representative with respect to this Agreement and the Escrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 6.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and no party hereunder shall have any cause of action against the Surviving CorporationMerger Subsidiary, the Company, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Surviving CorporationMerger Subsidiary, the Company, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative Representative, in her individual capacity and not as attorney-in-fact and agent for and on behalf of each Shareholder, agrees to indemnify and hold harmless each of the Surviving CorporationMerger Subsidiary, the Company, the Parent and the Escrow Agent Agreement for any Loss Damages suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunderhereunder (the "Shareholder Representative Indemnity"). Such ------------------------------------ indemnification shall be subject to the procedure set forth in Section 6.04 of this Agreement. For the avoidance of doubt, it is hereby acknowledged that the indemnity obligation under this Section is not subject to the limitations set forth in Section 6.03. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the Shareholder Representative may incur costs and expenses on behalf of the Shareholders in her capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Merger. [SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER BETWEEN ▇▇▇▇▇▇▇▇ ACQUISITION CORP., THE ▇▇▇▇▇▇▇▇ GROUP, INC., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER ___, 1999]
Appears in 1 contract
Sources: Merger Agreement (Interliant Inc)