Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative. (b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of In the approval of event that the Merger and this Agreement is approved by the requisite vote of the Company Shareholders, each effective upon such approval, and without further act of any Escrow Contributor, the Shareholders Shareholder Representative shall be deemed to have agreed to appoint TCB appointed as its the agent and attorney-in-fact, as the Shareholder Representative fact for and on behalf of the Shareholders Escrow Contributors, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize delivery or payment to any Indemnified Party Parent of Escrow Cash from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Escrow Contributors from time to time upon not less than thirty (30) days prior written notice to Parent; providedParent and the Escrow Agent. In the absence of any other affirmative indication by the Escrow Contributors, however“Shareholder Representative” shall mean the collective group of individuals (excluding ▇▇▇▇▇▇▇ ▇▇▇▇▇) that formed the Company’s Board of Directors immediately prior to the Effective Time (or their successors appointed or elected in the same manner as would apply if the Organizational Documents of the Company existing immediately prior to the Closing were still in effect as of the time of the appointment or election), that acting as a committee and making decisions by majority vote but acting for all purposes hereunder through a named sole contact person. Upon any change in the contact person, the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of shall promptly provide the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of Agent with a majority in interest of the Escrow Fundsignature specimen. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeEscrow Contributors.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (United Online Inc)
Shareholder Representative. (a) By virtue of The Shareholders have irrevocably made, constituted and appointed the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB Shareholder Representative as its their agent and true and lawful attorney-in-fact, as for such person and in such person's name, (i) to execute and deliver to the Shareholder Representative for and Buyer on behalf of all the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Escrow Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment on behalf of all such Shareholders which the Shareholder Representative deems appropriate in his discretion in connection with this Escrow Agreement as effectively as such person could act for the accomplishment of the foregoing himself, herself or itself, (ii) specifically mandated by to receive all claim notices and all of the terms notices and communications directed to such person under this Escrow Agreement and to take any action (or to determine to take no action) with respect thereto as the Shareholder Representative may deem appropriate in his discretion as effectively as such person could act for himself, herself or itself, including, without limitation, the settlement or compromise of any dispute relating to the Escrow Agreement or the Escrow Fund, or any other dispute or controversy relating to this Escrow Agreement. Such agency may be changed from time , and (iii) to time upon not less than thirty (30) days prior written notice execute and deliver all instruments and documents of every kind incident to Parent; providedthe foregoing to all intents and purposes and with the same effect as such person could do personally, howeverand each Shareholder has ratified and confirms as his, her or its own act, all that the Shareholder Representative may not shall do or cause to be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and done pursuant to the identity of the substituted agentprovisions hereof. A vacancy in the position of Each Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications has further agreed to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and to hold the Shareholder Representative harmless against any loss, liability liability, cost or expense suffered or incurred without gross negligence negligent conduct 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 his duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the as Shareholder Representative, including an amendmentthe costs and expenses incurred by such Shareholder Representative in defending against any claim of liability in connection herewith. The Shareholder Representative is specifically authorized to reimburse himself for any and all such loss, extension liability, cost or waiver of this Agreement, shall constitute a decision of expense suffered or incurred without negligent conduct or bad faith on the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction part of the Shareholder Representative as being out of any portion of the decisionEscrow Fund that becomes actually and finally payable and distributable to Shareholders in accordance with the provisions of Section 6(a), act, consent 6(b) or instruction 6(c) before such funds are disbursed or distributed to any of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Acquisition Agreement (Quanex Corp)
Shareholder Representative. (a) By virtue of the approval of the Merger Acquisition and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB ▇▇▇▇ ▇▇▇ as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to ParentPurchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive Following the termination of this Agreementthe Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Shareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement 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 Scheme Shareholders; and the Escrow Agent and Parent Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent Purchaser are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote Escrow Participants and without any further action of any of the ShareholdersEscrow Participants or the Company, each of Fortis Advisors LLC, a Delaware limited liability company, is hereby appointed as the Shareholders shall be deemed to have agreed to appoint TCB Shareholder Representative and as its agent the true and lawful attorney-in-fact, as the Shareholder Representative for fact and on behalf of the Shareholders to take all actions exclusive agent under this Agreement that are and the Escrow Agreement. The rights of the Escrow Participants to receive disbursements from the Escrow Fund and Holdback Account shall be taken by subject to the right of Fortis Advisors LLC (the "Shareholder Representative. The Shareholder Representative is authorized and empowered ") to take any and all actions which it believes are reasonably necessary and make any and all decisions required or appropriate permitted to be taken or made by the Shareholder Representative under this Agreement, the Escrow Agreement or the Shareholder Representative Engagement Agreement, including without limitation giving the exercise of the right to: (i) give and receiving receive notices and communicationscommunications under Section 2.6, Article 8 or the Escrow Agreement; (ii) authorize delivery to authorize payment to any Indemnified Party Parent of cash from the Escrow Fund pursuant to Section 2.6(f)(ii) or in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to, agree to, negotiate, bring matters before the Neutral Accounting Arbitrator, or enter into settlements and compromises with respect to, any Indemnified Party, adjustment to the Merger Consideration pursuant to Section 2.6; (iv) object to such payments, to claims for indemnification made by Parent under Article 8; (v) agree to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with court orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements claims for indemnification made by Parent under Article 8; (vi) undertake any defense of Third‑Party Claims; and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to (vii) take all other actions that are either (i) necessary or appropriate in the good faith judgment of the Shareholder Representative for the accomplishment of the foregoing foregoing. Notwithstanding the foregoing, the Shareholder Representative shall have no obligation to act on behalf of the Escrow Participants, except as expressly provided herein, in the Escrow Agreement and in the Shareholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholder Representative in any ancillary agreement, schedule, exhibit or (ii) specifically mandated by the terms Disclosure Schedule. The identity of this Agreement. Such agency the Shareholder Representative may be changed changed, and a successor Shareholder Representative may be appointed, from time to time upon not less than thirty (30including in the event of the resignation or the death, disability or other incapacity of the Shareholder Representative) days prior written notice to Parent; providedby Escrow Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), however, that and any such successor shall succeed the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest as Shareholder Representative hereunder. The immunities and rights to indemnification shall survive the resignation or removal of the Escrow Fund agree to such removal and to the identity Shareholder Representative or any member of the substituted agent. A vacancy in Advisory Group and the position Closing and/or any termination of Shareholder Representative may be filled by the holders of a majority in interest of this Agreement and the Escrow FundAgreement. No bond shall be required of the Shareholder Representative. From and after the Effective Time, and a decision, act, consent or instruction of the Shareholder Representative shall not receive any compensation for its services. Notices taken under this Agreement, the Escrow Agreement or communications to or from the Shareholder Representative Engagement Agreement shall constitute notice be final, binding and conclusive upon each Escrow Participant and such Escrow Participant's successors as if expressly confirmed and ratified in writing by such Escrow Participant, and all defenses which may be available to any Escrow Participant to contest, negate or from disaffirm the Shareholders. Without limiting the generality action of the foregoing, the Shareholder Representative shall have taken in good faith under this Agreement, the full power and authority to interpret all Escrow Agreement or the terms and provisions of this Shareholder Representative Engagement Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representativeare waived.
(b) At the Closing, Parent shall make a cash payment to the Shareholder Representative, by wire transfer of immediately available funds to an account designated by the Shareholder Representative prior to the Closing Date, in an amount equal to the Representative Reimbursement Amount. The Representative Reimbursement Amount shall be held by the Shareholder Representative for (i) reimbursement payable to the Shareholder Representative under this Section 9.1 or (ii) use as otherwise determined by the Advisory Group. The Shareholder Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Representative Reimbursement Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Reimbursement Amount, and has no tax reporting or income distribution obligations. The Escrow Participants will not receive any interest on the Representative Reimbursement Amount and assign to the Shareholder Representative any such interest. Subject to Advisory Group approval, the Shareholder Representative may contribute funds to the Representative Reimbursement Amount from any consideration otherwise distributable to the Escrow Participants. Any portion of the Representative Reimbursement Amount that has not been utilized by the Shareholder Representative pursuant to the terms of this Agreement on or prior to the date specified by the Shareholder Representative on or after the Escrow Release Date, shall be paid by the Shareholder Representative to the Escrow Agent for distribution to the Escrow Participants pro rata in accordance with their respective Escrow Participation Percentages.
(c) Certain Escrow Participants have entered into an engagement agreement (the "Shareholder Representative Engagement Agreement") with the Shareholder Representative to provide direction to the Shareholder Representative in connection with its services under this Agreement, the Escrow Agreement and the Shareholder Representative Engagement Agreement (such Escrow Participants, including their individual representatives, collectively hereinafter referred to as the "Advisory Group"). Neither the Shareholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the "Shareholder Representative Group"), shall be liable for any act done liability, loss, damage, penalty, fine, cost or omitted hereunder as expense incurred without gross negligence by the Shareholder Representative while acting in good faith and in the exercise of reasonable judgmentits good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith). The Shareholders Escrow Participants shall indemnify indemnify, defend and hold harmless the Shareholder Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred without gross negligence or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Escrow Agreement or under the Shareholder Representative Engagement Agreement. The Escrow Fund shall be available to indemnify and hold the Shareholder Representative harmless against any liability, loss, liability damage, penalty, fine, cost or expense incurred by the Shareholder Representative without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Shareholder Representative’s duties hereunderEscrow Agreement. The powers, including the reasonable fees immunities and expenses of any legal counsel retained by rights to indemnification granted to the Shareholder Representative Group hereunder: (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including i) are coupled with an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders interest and shall be finalirrevocable and survive the death, incompetence, bankruptcy or liquidation of any Escrow Participant and shall be binding on any successor thereto, and conclusive upon (ii) shall survive the Shareholders; and delivery of an assignment by any Escrow Participant of the whole or any fraction of his, her or its interest in the Escrow Agent Fund and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. Holdback Account.
(d) The Shareholder Representative may in all questions arising under shall be entitled to deduct and recover from any amounts payable to the Escrow Participants pursuant to this Agreement seek advice of legal counsel, or the Escrow Agreement any costs and for anything done, omitted or suffered in good faith expenses reasonably incurred by the Shareholder Representative in accordance connection with such adviceactions taken by the Shareholder Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs), after the Representative Reimbursement Amount has been exhausted. The Escrow Participants acknowledge that the Shareholder Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Shareholder Representative shall not be liable required to take any action unless the Shareholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholder Representative against the costs, expenses and liabilities which may be incurred by the Shareholder Representative in performing such actions.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall promptly afford to the Shareholder Representative reasonable access to the books, records (including accountants' work papers) and employees of Parent and the Surviving Corporation to the extent reasonably determined by the Shareholder Representative to be necessary to permit it to investigate or determine any matter relating to (i) its rights or obligations or the rights or obligations of the Escrow Participants under this Agreement, or (ii) the rights or obligations (under any law or otherwise) of the Escrow Participants with respect to any Shareholderperiod ending on or before the date of this Agreement. The Escrow Agent and Parent are hereby relieved from any liability Unless otherwise consented to any person for any decision, act, consent or instruction of in writing by the Shareholder Representative, neither Parent nor the Surviving Corporation shall, for a period of four years after the date of this Agreement, destroy, alter or otherwise dispose of any of the books and records of the Surviving Corporation relating in whole or in part to any period prior to the date of this Agreement without first offering to surrender to the Shareholder Representative such books and records or any portion thereof which Parent or the Surviving Corporation may intend to destroy, alter or otherwise dispose of.
(f) Parent may rely and shall be protected in acting, or refraining from acting, upon any written notice, instruction or request furnished to it hereunder or under the Escrow Agreement and reasonably believed by Parent to be genuine and to have been signed or presented by the Shareholder Representative as if such written notice, instruction or request had been furnished to it by all the Escrow Participants.
(g) Parent hereby consents to the retention by the Shareholder Representative of L▇▇▇▇ ▇▇▇▇▇ & N▇▇▇▇▇▇▇▇▇▇▇ LLP ("L▇▇▇▇ ▇▇▇▇▇") as counsel following the Closing, notwithstanding that L▇▇▇▇ ▇▇▇▇▇ has represented the Company in connection with the transactions contemplated by this Agreement, including the negotiation of this Agreement, and waives any right Parent or the Surviving Corporation may have to object to such representation.
(h) The Shareholder Representative shall be entitled to: (i) rely upon the Schedule of Escrow Participants, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Escrow Participant or other party.
Appears in 1 contract
Sources: Merger Agreement (Aerocentury Corp)
Shareholder Representative. (a) By virtue of In the approval of event that the Merger and this Agreement is approved by the requisite vote Shoom Stockholders, effective upon such vote, and without further act of the Shareholdersany stockholder, each of the Shareholders W▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the “Shareholder Representative”) for each Shoom Stockholder (except such shareholders, if any, as shall have perfected their dissenters’ rights under the Shareholder Representative CCC), for and on behalf of the Shareholders Shoom Stockholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such paymentsClaims for indemnification, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated herebyClaims for which indemnification is sought, 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 Agreementforegoing. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreementfaith. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all the Shareholders Shoom Stockholders and shall be final, binding and conclusive upon each of the Shareholders; Shoom Stockholders, and the Escrow Agent and Parent Sysorex Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholdersevery such Shoom Stockholder. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counselbe removed and replaced by the Shoom Stockholders from time to time upon not less than 30 days prior written notice to Sysorex; provided, and for anything donehowever, omitted or suffered in good faith by that the Shareholder Representative may not be removed unless holders of a majority of the Consideration Shares agree to such removal and to the identity of the substituted Shareholder Representative. Any vacancy in accordance with the position of Shareholder Representative may be filled by approval of the holders of a majority in interest of the Consideration Shares. In the event that a vacancy in the position of Shareholder Representative is not filled by a majority in interest of the Consideration Shares, Sysorex may petition a court of competent jurisdiction to appoint a successor to such adviceposition. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not be liable receive compensation for his services. Notices or communications to any Shareholder. The Escrow Agent and Parent are hereby relieved or from any liability the Shareholder Representative shall constitute notice to any person for any decision, act, consent or instruction from each of the Shoom Stockholders. Notwithstanding the above, the Shareholder Representativerepresentative shall not have the power to settle or compromise any Claim relating to the inaccuracy of representations or warranties made by a Shoom Stockholder in the Shareholder Representation Statement delivered by such Shoom Stockholder for which only such individual Shoom Stockholder has indemnification obligations.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each Existing Shareholder hereby covenants and agrees that ▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby fully and exclusively authorized, empowered and appointed to serve as his sole representative and agent (the "Existing Shareholder Representative"), to take any and all actions, with respect to the execution, delivery and performance of the approval Escrow Agreement, dated as of the Merger Closing Date, by and this among City, ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ 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 requisite vote Existing Shareholders, to perform all of the Shareholders, each 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 deemed to have agreed to appoint TCB absolutely and irrevocably binding on each Existing Shareholder as its agent 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, as the Shareholder Representative for and on behalf with full power of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communicationssubstitution, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators act with respect to such claimsthe Escrow Agreement. By granting this proxy, the Existing Shareholder hereby revokes any other proxy granted by him to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators vote or act by written consent with respect toto the Escrow Agreement. All power and authority hereby conferred by the Existing Shareholder in this subsection (b) is coupled with an interest and is irrevocable, any other claim shall not be terminated by any Indemnified Party against 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 such Shareholder against any Indemnified Party other event or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated herebyevents, and to take shall be binding upon all other actions that are either (i) necessary or appropriate in beneficiaries, heirs, legatees, distributees, successors, assigns and legal representatives of such Existing Shareholder. If after the judgment execution of the Escrow Agreement, an Existing Shareholder Representative for shall die or become incapacitated or cease to have appropriate power or authority, or if any other such event or events shall occur, the accomplishment of Existing Shareholder Representative, acting as provided herein, is nevertheless authorized to act with respect to the foregoing or (iiEscrow Agreement) specifically mandated by in accordance with the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to Agreement as if such removal death, incapacity, lack of appropriate power or authority or other event or events had not occurred and to the identity regardless of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representativethereof.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Asset Contribution Agreement (City Truck Holdings Inc)
Shareholder Representative. (a) By virtue The parties have agreed that, effective as of the date of this Agreement, it is desirable to designate the Shareholder Representative as a representative to act on behalf of the Company Equityholders for certain limited purposes, as specified herein. The approval of the Merger and this Agreement by the requisite vote Company Equityholders shall constitute ratification and approval of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representativesuch designation. The Shareholder Representative is authorized may resign at any time, and empowered the 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 take any 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 all actions which authority as are necessary to carry out the functions assigned to it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest shall have no obligation to act on behalf of the Escrow Fund agree to such removal Company Equityholders and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder RepresentativeCVR Holders, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholdersexcept as expressly provided herein. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power power, authority and authority discretion to interpret all the terms (i) expend Shareholder Allocable Expenses, (ii) negotiate and provisions of enter into amendments to this Agreement and the Escrow Agreement for and on behalf of the Company Equityholders and CVR Holders, and (iii) exercise on behalf of the Company Equityholders and CVR Holders all rights granted to consent the Shareholder Representative under Section 3.7, and (iv) act as a representative of Parent Indemnifying Parties under Section 9.5. The Shareholder Representative shall have no Liability to Parent, Merger Sub, the Company (or, following the Effective Time, the Surviving Company) or any amendment hereof thereof Company Equityholder or CVR Holder with respect to actions taken or omitted to be taken in its capacity as the Shareholder Representative (except to Company Equityholders and CVR Holders for those actions arising out of the Shareholder Representative.
(b) ’s bad faith or willful misconduct). The Shareholder Representative shall at all times be entitled to rely on any directions received from the Majority Equityholders; provided, however, that the Shareholder Representative shall not be liable for required to follow any act done or omitted hereunder such direction, and shall be under no obligation to take any action in its capacity as the Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify Representative, unless the Shareholder Representative and hold is holding funds delivered to it under Section 3.12 and/or has been provided with other funds, security or indemnities which, in the sole determination of the Shareholder Representative, are sufficient to protect the Shareholder Representative harmless against any lossthe costs, liability expenses and Liabilities which may be incurred by the Shareholder Representative in responding to such direction or expense incurred without gross negligence or taking such action. The Shareholder Representative shall be entitled to engage such counsel, advisors, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholder Representative shall be entitled to reimbursement from funds paid to it under Section 3.12, released from the Adjustment Escrow Account for the benefit of the Company Equityholders (other than Pathfinder) and arising out of CVR Holders and/or otherwise received by it in its capacity as the Shareholder Representative pursuant to or in connection with this Agreement, for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, advisors, experts and other agents and consultants) incurred by the acceptance Shareholder Representative in 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 administration 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 duties hereunderbad faith or willful misconduct), including the reasonable fees costs and expenses of any legal counsel retained by investigation and defense of claims. In the event that the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of Allocable Expenses exceed the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith 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 such advicethe terms of the Escrow Agreement, the Shareholder Representative shall not be liable deliver (1) to any Shareholder. The Escrow the Paying Agent (for payment to each holder of Company Ordinary Shares) a cash payment in an amount equal to the product of (x) such excess amount, multiplied by (y) the Ordinary Shares Percentage, (2) to the Surviving 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 Parent are hereby relieved from any liability (3) to any person for any decision, act, consent or instruction ECI BV a cash payment in an amount equal to the product of (x) such excess amount multiplied by (y) the Shareholder RepresentativeCVR Percentage.
Appears in 1 contract
Shareholder Representative. (a) By For purposes of this Agreement and the Escrow Agreement, the Company hereby appoints, and each Company Shareholder and Optionholder shall, without any further action on the part of any such Company Shareholder or Optionholder, be deemed (by virtue of the adoption and approval of this Agreement and approval of the Merger and and/or acceptance of any consideration pursuant to this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed Agreement) to have agreed consented to appoint TCB as its agent and attorney-in-fact, the appointment of Shareholder Representative Services LLC as the Shareholder Representative attorney‑in‑fact and agent for and on behalf of each such Company Shareholder and Optionholder, and the Shareholders to take taking by the Shareholder Representative of any and all actions under this Agreement that are and the making of any decisions required or permitted to be taken by the Shareholder Representative. The Shareholder Representative is authorized under or contemplated by this Agreement and empowered the other documents contemplated hereby, including the exercise of the power to take any and all actions which it believes are reasonably necessary or appropriate under (i) execute this Agreement, the Escrow Agreement and other agreements, documents and certificates pursuant to such agreements, including without limitation giving all amendments to such agreements, and receiving notices and communicationstake all actions required or permitted to be taken under such agreements, (ii) authorize delivery to authorize payment to Parent of all or any Indemnified Party portion of the Escrow Fund from the Escrow Fund Account, in satisfaction of indemnification or other claims contemplated by any Indemnified Partythis Agreement or as provided in the Escrow Agreement, to object to such payments, to (iii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration of and comply with orders of courts and awards of arbitrators with respect to such indemnification or other claims, to assert(iv) resolve any indemnification or other claims, negotiate, enter into settlements (v) receive and compromises of, forward notices and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating communications pursuant to this Agreement or and the transactions contemplated herebyEscrow Agreement, and to (vi) 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 and all of the terms other terms, conditions and limitations of this Agreement, the Escrow Agreement and any other agreements, documents and certificates thereto. Such agency Any and all such actions taken by the Shareholder Representative on behalf of the Company Shareholders and Optionholders (or former Company Shareholders and Optionholders) shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Company Shareholders and Optionholders. The Company Shareholders and Optionholders shall cooperate with the Shareholder Representative and any accountants, attorneys or other agents whom the Shareholder Representative may be changed from time retain to time upon not less than assist in carrying out Shareholder Representative’s duties hereunder. Shareholder Representative Services LLC hereby accepts its appointment as the Shareholder Representative. The Shareholder Representative is authorized by each Company Shareholder and Optionholder by virtue of the adoption and approval of this Agreement and approval of the Merger to act on its behalf as required hereunder and under the Escrow Agreement. The Shareholder Representative may resign at any time, with thirty (30) days prior written notice to Parent; providedParent and the Escrow Agent, howeverupon the terms set forth in the engagement agreement between the Company and the Shareholder Representative. At any time during the term of the Escrow Agreement, Company Shareholders holding (or after the Effective Time, former Company Shareholders who held immediately prior to the Effective Time) a majority of the votes entitled to be cast by the Junior Common Shares at the Shareholders’ Meeting can appoint a new Shareholder Representative (after reasonably consulting with Parent regarding the proposed new Shareholder Representative) by sending notice and a copy of the duly executed written consent appointing such new Shareholder Representative to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent. The parties acknowledge that the Shareholder Representative may not be removed unless holders of Representative’s obligations under this Article VIII are solely as a two-thirds (2/3) interest representative of the Escrow Fund agree to such removal Company Shareholders and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of Optionholders under this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeArticle VIII.
(b) All decisions, actions, consents and instructions of the Shareholder Representative shall be final and binding upon all the Company Shareholders and Optionholders and no Company Shareholder or Optionholder shall have any right to object, dissent, protest or otherwise contest the same, except for fraud, bad faith or willful misconduct. Parent shall be able to rely conclusively on the instructions and decisions of the Shareholder Representative and shall be required to only file and negotiate any claims or disputes with the Shareholder Representative and not with each Company Shareholder and Optionholder. The Shareholder Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Shareholder or Optionholder, except in respect of amounts actually received on behalf of such Company Shareholder or Optionholder. The Shareholder Representative shall not be liable for required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. The Shareholder Representative shall not have any liability to any Company Shareholder or Optionholder in connection with the Shareholder Representative’s services pursuant to this Agreement while acting in good faith, and any act done or omitted hereunder as Shareholder Representative while acting pursuant to the advice of legal counsel, public accountants or other independent experts reasonably relied upon in good faith and in by the exercise Shareholder Representative shall be conclusive evidence of reasonable judgmentsuch good faith. The Company Shareholders and Optionholders shall severally (based on such Company Shareholder’s or Optionholder’s Pro Rata Portion) indemnify the Shareholder Representative and hold the Shareholder Representative it harmless against any loss, liability liability, damage, claim, penalty, fine, forfeiture, action, fee cost or expense incurred without gross negligence or bad faith on (including the part fees and expenses of the counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholder Representative and Expenses”) arising out of or in connection with the acceptance or administration of the Shareholder Representative’s its duties hereunder, including in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the reasonable fees and expenses of event that any legal counsel retained such Shareholder Representative Expense is finally adjudicated to have been directly caused by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent gross negligence or instruction bad faith of the Shareholder Representative, including an amendmentthe Shareholder Representative will reimburse the Company Shareholders and Optionholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or bad faith. If not paid directly to the Shareholder Representative by the Company Shareholders and Optionholders, extension or waiver of this Agreementany such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Shareholder Representative Fund and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders and Optionholders; provided, shall constitute a decision that in no event may any Shareholder Representative Expenses be recovered by the Shareholder Representative from any portion of the Escrow Fund that has not been disbursed by the Escrow Agent for distribution to the Company Shareholders and shall Optionholders in accordance with the Escrow Agreement; provided, further, that while this section allows the Shareholder Representative to be final, binding and conclusive upon the Shareholders; paid from Shareholder Representative Fund and the Escrow Agent Fund, this does not relieve the Company Shareholders and Parent may rely upon Optionholders from their obligation to promptly pay such Shareholder Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any such decision, act, consent remedies available to it at law or instruction otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Company Shareholders and Optionholders or otherwise. The Company Shareholders and Optionholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative as being or the decision, act, consent or instruction termination of the Shareholders. this Agreement.
(c) The Shareholder Representative may hereby represents and warrants to Parent that (i) it is a limited liability company validly existing and in good standing under the Laws of the State of Colorado, (ii) it has all questions arising under requisite limited liability company power and authority to execute and deliver this Agreement seek advice and the Escrow Agreement and to perform its obligations hereunder and thereunder, (iii) the execution and delivery of legal counselthis Agreement by it has been, and for anything donethe execution and delivery of the Escrow Agreement by it at Closing will be, omitted or suffered in good faith duly authorized by all necessary limited liability company action, (iv) this Agreement has been (and upon the Shareholder Representative’s execution thereof the Escrow Agreement will be) duly executed and delivered by it, and assuming the due authorization, execution and delivery hereof by the Shareholder Representative in accordance with such adviceother parties hereto or thereto, constitutes (or will constitute once executed) the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent legal, valid and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction binding obligations of the Shareholder Representative, enforceable against it in accordance with their terms, except as enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting the enforcement of creditors’ rights generally, the laws of agency, and legal principles of general applicability governing the availability of equitable remedies (whether considered in a proceeding in equity or at law or under applicable legal codes).
Appears in 1 contract
Shareholder Representative. (a) By virtue The Company (and pursuant to the terms of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersCompany Shareholder Approval, each of the Shareholders shall be deemed Company Shareholders) irrevocably appoints the Shareholder Representative to have agreed to appoint TCB act as its agent representative, agent, proxy and attorney-in-factfact for the Company Shareholders for all purposes under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including, without limitation, the full power and authority on each such Company Shareholder’s behalf to: (i) receive notices or service of process, (ii) negotiate, determine, compromise, settle and take any other action permitted or called for by any Company Shareholder under this Agreement, (iii) execute and deliver any termination, amendment or waiver to this Agreement in connection therewith, (iv) engage such counsel, experts and other agents and consultants as the Shareholder Representative for deems necessary in connection with exercising the powers granted hereunder and, in the absence of bad faith on the part of the Shareholder Representative, will be entitled to conclusively rely on the opinions and advice of such Persons, (v) receive funds and make or release payments of funds to pay any amounts that the Shareholder Representative has incurred or reasonably expects to incur in connection with the Company Shareholders’ obligations under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including amounts required to pay the fees and expenses of professionals incurred in connection with the Contemplated Transactions, (vi) to execute closing statements, settlement statements and funds flow statements on behalf of the Company Shareholders and the Company. The Company Shareholders acknowledge that Parent and Merger Sub will be entitled to take all actions under conclusively rely upon, without independent investigation, any act, notice, instruction or communication of the Shareholder Representative as provided in this Agreement that are to Section 9.1 as the acts of the Company Shareholders and will not be liable in any manner whatsoever for any of Parent or Merger Sub’s actions, as applicable, taken or not taken in reliance upon the acts or omissions or communications or writings given or executed by the Shareholder Representative.
(b) The Company Shareholders agree that such agency and proxy are coupled with an interest, and are therefore irrevocable without the consent of the Shareholder Representative and will survive the death, incapacity, bankruptcy, dissolution or liquidation of any Company Shareholder. All decisions and actions by the Shareholder Representative will be binding upon the Company Shareholders, and no Company Shareholder will have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative is authorized will have no duties or obligations hereunder except those specifically set forth herein and empowered to take any such duties and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated obligations will be determined solely by the terms express provisions of this Agreement. Such agency The Company Shareholders will jointly and severally indemnify and hold harmless the Shareholder Representative against all liabilities incurred by the Shareholder Representative in connection with the performance of his, her or its duties as the Shareholder Representative, including, without limitation, any action, suit or proceeding to which the Shareholder Representative is made a party by reason of the fact that the Shareholder Representative is or was acting as the Shareholder Representative under this Agreement. Neither the Shareholder Representative nor any agent employed by the Shareholder Representative will incur any Liability to any Company Shareholder relating to the performance of Shareholder Representative’s duties hereunder except for actions or omissions constituting fraud or bad faith. The Shareholder Representative will have no Liability in respect of any action, claim or proceeding brought against the Shareholder Representative by any Company Shareholder if the Shareholder Representative took or omitted taking any action in good faith.
(c) The provisions of this Section 9.1 will be binding on the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Company Shareholder, and any references in this Agreement to a Company Shareholder means and includes the successors to such Person’s rights hereunder, whether pursuant to a testamentary disposition, the Legal Requirements of descent and distribution or otherwise.
(d) If the Shareholder Representative shall die, become disabled or otherwise be unable or unwilling to fulfill his, her or its responsibilities as agent of the Company Shareholders, then a majority in interest of the Company Shareholders (based on the ownership of the capital stock of the Company immediately prior to the Effective Time) shall appoint a successor agent for the Company Shareholders. The Person serving as the Shareholder Representative may be changed replaced from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required Company Shareholders (based on the ownership of the Shareholder Representativecapital stock of the Company immediately prior to the Effective Time). In either case, and the successor Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality promptly notify Parent of the foregoing, identity of such successor Shareholder Representative. Any such successor shall become the “Shareholder Representative shall have the full power and authority to interpret all the terms and provisions Representative” for purposes of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representativethe Escrow Agreement.
(be) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense All expenses incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance connection with such advicethe performance of his, the her or its duties as Shareholder Representative shall not be liable borne and paid exclusively by the Company Shareholders, pursuant to any Shareholder. The their respective ownership of Company Common Stock immediately prior to the Effective Time, and may, to the extent available, be deducted from the Escrow Agent and Parent are hereby relieved from any liability Funds once eligible for release to any person for any decision, act, consent or instruction of the Shareholder RepresentativeCompany Shareholders.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Raven Industries Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB The Shareholder Representative is hereby appointed as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders each Indemnifying Party, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communicationscommunications related to claims for Losses, to authorize payment to any the order of an Indemnified Party from the Escrow Fund in satisfaction of claims by any an Indemnified Party, to object to and defend against such paymentsclaims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement; provided, however, that the Shareholder Representative shall have no authority to bind any Indemnifying Party to any liability that is not satisfied solely from the Escrow Fund other than liabilities pursuant to section 6.2(a)(v). Such agency may be changed by the Indemnifying Parties from time to time upon not less than thirty (30) days prior written notice to Parentthe Surviving Corporation; provided, however, that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of in the Escrow Fund agree to such removal; provided that if such removal and to results in there being no Shareholder Representative, then the identity of removal shall not be effective until the Shareholders shall have appointed a substituted agent. A Shareholder Representative may resign at any time upon thirty (30) days advance notice to Holdings, the Escrow Agent. A vacancy in the position of Shareholder Representative may at any time prior to the Survival Date shall be filled promptly by the holders of a majority majority-in-interest in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeIndemnifying Parties.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative representatives of the Indemnifying Parties while acting in good faith even though such act or omission constitutes negligence on the part of such Shareholder Representative. The Shareholder Representative may engage attorneys, accountants and other professionals and experts. The Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company, the Surviving Company or another Person, that were prepared or presented by (i) one or more officers or employees of the Company or Surviving Corporation, or (ii) legal counsel, public accountants, investment bankers or other Persons as to matters the Shareholder Representative believes in good faith are within the Person’s knowledge, professional or expert competence. Any action taken by the Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of the exercise duties of reasonable judgmentsuch Shareholder Representative’s duties. The Shareholders Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the Shareholder Representative’s obligations to the Escrow Agent hereunder and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representatives. The Shareholder Representative Expenses”has only the duties expressly stated in this Agreement and the Escrow Agreement, and shall have no other duty, express or implied. The Shareholder Representative is not a fiduciary of the Indemnifying Parties. The Shareholder Representative has no responsibility or liability for any representation, warranty or covenant of the Company, the Surviving Company, Holdings or Sub except in his capacity as an Indemnifying Party. THE INDEMNIFYING PARTIES AND THE SHAREHOLDER REPRESENTATIVE INTEND THAT THE SHAREHOLDER REPRESENTATIVE SHALL BE INDEMNIFIED AND HELD HARMLESS BY THE INDEMNIFYING PARTIES FROM AND AGAINST ANY LIABILITY FOR HIS OWN NEGLIGENCE PURSUANT TO THIS SECTION 6.3(b). This indemnification shall survive termination of this Agreement. .
(c) A decision, act, consent or instruction of from the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 7.3 and Section 7.4 hereof, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the Shareholders; Indemnifying Parties, and the Escrow Agent and Parent the Indemnified Party may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any ShareholderIndemnifying Parties. The Escrow Agent and Parent Indemnified Party 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.
(d) The Shareholder Representative shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to counsel, witness and experts necessary to perform their duties hereunder who agree to treat such information confidentially).
(e) According to the terms of the Escrow Agreement, the Shareholder Representative shall be entitled to withhold from interest earned on the Escrow Fund and from amounts to be distributed from the Escrow Fund to the Indemnifying Parties a portion of the Escrow Fund that is equal to the reasonable estimated expenses to be incurred by the Shareholder Representative as specified in a Certificate to be delivered to the Escrow Agent.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by without any further action on the requisite vote of the Shareholders, each part of the Shareholders other than the Company Shareholder Approval, from and after the Effective Time, the Shareholder Representative shall be deemed to have agreed to appoint TCB act as its agent and attorney-in-fact, as the Shareholder Representative for and fact on behalf of the Shareholders for purposes of (i) taking action or receiving notice pursuant to take Article 9 and the Escrow Agreement, (ii) taking action or receiving notice in connection with the Merger Consideration Adjustment Amount pursuant to Section 2.6 and the Escrow Agreement, (iii) taking any and all actions under this Agreement that are and making any and all decisions required or permitted to be taken by the Shareholder RepresentativeRepresentative under this Agreement and the Escrow Agreement, and (iv) exercising such rights, power and authority as are incidental hereto (including the right, power and authority to retain attorneys, accountants and other advisors to assist it in the performance of its duties hereunder). The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full ability and power to execute and deliver all instruments, certificates and other documents of every kind incident to the foregoing and all right, power and authority to interpret act on behalf of the Shareholders in connection herewith. Both Parent and the Surviving Corporation shall be entitled to deal exclusively with the Shareholder Representative on all matters relating to Section 2.6, Article 9 and the terms and provisions Escrow Agreement. If the then-current Shareholder Representative shall resign its position or be unable to fulfill its responsibilities as agent of the Shareholders, then the Shareholders holding, immediately prior to the Closing, a majority of the Common Shares Outstanding shall select a successor shareholder representative. Any such successor shall become the “Shareholder Representative” for purposes of this Agreement and the Escrow Agreement; and no such resignation of the then-current Shareholder Representative shall be effective as to consent to any amendment hereof thereof in its capacity as the then-current Shareholder RepresentativeRepresentative until the new Shareholder Representative shall accept such appointment.
(b) The Shareholder Representative shall not be liable will receive no compensation for any act done or omitted hereunder services as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative but shall be entitled to the payment of all of its reasonable and hold documented out-of-pocket expenses incurred (including the costs, expenses and disbursements incurred in connection with retaining outside counsel) in connection with the performance of its duties hereunder and pursuant to the Escrow Agreement.
(c) Parent shall deliver, or cause to be delivered, to a bank designated by the Shareholder Representative, in cash, the sum of $150,000 (the “Shareholder Representative Fund Amount”), which shall be available from time to time to the Shareholder Representative harmless against any losssolely in connection with the provisions of Section 10.1(b). The Shareholder Representative shall maintain the Shareholder Representative Fund Amount in a segregated account.
(d) From time to time after the Effective Time, liability the Shareholder Representative may distribute to the Shareholders, in accordance with Section 1.5 of this Agreement, such portion of such sum from the Shareholder Representative Fund Amount as the Shareholder Representative reasonably determines will not be needed for the payment of future costs and expenses. Any portion of such sum remaining after the final resolution of all claims asserted against, or expense asserted by or on behalf of, the Shareholders hereunder or under the Escrow Agreement and the final distribution to the Shareholders of all monies that are or could be distributable to them hereunder or under the Escrow Agreement shall be distributed to the Shareholders in accordance with Section 1.5 of this Agreement. All fees and expenses incurred without gross negligence or bad faith on by the part Shareholder Representative in excess of the Shareholder Representative Fund Amount shall be paid from any funds otherwise due to the Shareholders (including from the Escrow Fund to the extent such amount is payable to the Shareholders in accordance with Section 2.1) in proportion to the conversion methodology set forth in Section 1.5 of this Agreement and arising out if no funds are available from the Escrow Fund, then directly from the Shareholders in proportion to their Pro Rata Share.
(e) Any indemnification payments owed to a Shareholder Indemnified Party pursuant to Article 9 will be effected by wire transfer of or in connection with the acceptance or administration of immediately available funds to an account designated by the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained . All indemnification payments to be received by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination Indemnified Parties in accordance with Article 9 will be allocated among the Shareholders in proportion to the conversion methodology set forth in Section 1.5 of this Agreement. .
(f) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 10.3 and Section 10.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and Parent and the Escrow Agent and Parent Surviving Corporation may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, Parent and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent Surviving Corporation are hereby relieved from any liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for -------------------------- each Company Shareholder, as the Shareholder Representative for and on behalf of share holders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Company Shareholders from time to time upon not less than thirty ten (3010) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Usweb Corp)
Shareholder Representative. (a) By virtue of the their approval of the Merger and this Agreement by the requisite vote of the ShareholdersMerger, each of Securityholder designates and appoints the Shareholders shall be deemed to have agreed to appoint TCB Shareholder Representative as its such Securityholder’s agent and attorney-in-fact, as the Shareholder Representative fact with full power and authority to act for and on behalf of the Shareholders each Securityholder to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment accept service of process on behalf of the Shareholders pursuant to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified PartySection 9.4(f) and Section 11.11, to object authorize and agree to such paymentsadjustments to the Merger Consideration under Sections 2.6 and 2.7 and other applicable provisions of this Agreement, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders Judgments of courts or other Governmental Authorities and awards of arbitrators with respect to such claimsarbitrators, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim claims by any Purchaser Indemnified Party against any Shareholder or by any such Shareholder against any Purchaser Indemnified Party Party, or any other dispute between any Purchaser Indemnified Party and any such ShareholderSecurityholder, in each case relating to this Agreement or the transactions contemplated hereby, by this Agreement and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret Securityholders for all the terms and provisions of purposes under this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeAgreement.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder may delegate its authority as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against to any loss, liability or expense incurred without gross negligence or bad faith on the part one of the Shareholder Representative and arising out Shareholders for a fixed or indeterminate period of time upon not fewer than 10 Business Days’ prior written notice to the Purchaser in accordance with Section 11.2. In the event of the death or in connection with the acceptance or administration incapacity of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained a successor Shareholder Representative will be elected promptly by the Shareholders whose interests aggregate not less than a majority of the Net Notional Merger Consideration and the Securityholders will so notify the Purchaser. Each successor Shareholder Representative (has all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholder Representative, and the term “Shareholder Representative Expenses”). This indemnification shall survive termination of Representative” as used in this Agreement. Agreement includes any successor Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute Representative constitutes a decision of all the Shareholders Securityholders and shall be is final, binding and conclusive upon the Shareholders; Securityholders, and the Escrow Agent Purchaser and Parent any Indemnified Party may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersSecurityholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and Purchaser is hereby relieved from any Liability to any Person for anything done, omitted any acts done or suffered in good faith omissions by the Shareholder Representative Purchaser in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative. Without limiting the generality of the foregoing, the Purchaser is entitled to rely, without inquiry, upon any document delivered by the Shareholder Representative as being genuine and correct and having been duly signed or sent by the Shareholder Representative.
(d) The Shareholder Representative will have no Liability to any Person for any act done or omitted under this Agreement as the Shareholder Representative while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Securityholders will severally indemnify and hold harmless the Shareholder Representative from and against any Losses the Shareholder Representative may suffer as a result of any such action or omission.
(e) The Shareholder Representative will receive no compensation for services as the Shareholder Representative. The Securityholders will reimburse, on a pro rata basis in proportion to their interest in the Merger Consideration, the Shareholder Representative for professional fees and expenses of any attorney, accountant or other advisors retained by the Shareholder Representative and other reasonable out-of-pocket expenses incurred by the Shareholder Representative in connection with the performance of the Shareholder Representative’s duties under this Agreement.
(f) This appointment and grant of power and authority by the Securityholders to the Shareholder Representative pursuant to this Section 11.1 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the act of any Shareholder or by operation of Law, whether upon the death or incapacity of any Shareholder, or by the occurrence of any other event.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger 15.16.1 Each Selling Shareholder hereby irrevocably authorizes and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, appoints ▇▇▇▇▇ ▇▇▇▇▇▇ as the Shareholder Representative for Representative, with full power of substitution and on behalf of resubstitution, as his or its representative in connection with the Shareholders to take all actions under this Agreement Transactions.
15.16.2 Each Selling Shareholder agrees that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized shall have the full power, authority and empowered right to perform, do and take any and all actions which it believes are reasonably he deems necessary or appropriate under advisable to carry out the purposes of this Agreement, including Agreement and the Transactions all without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object liability to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Selling Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that so long as same are either (i) necessary or appropriate in the judgment of carried out by the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementin good faith. Such agency may be changed from time actions include the power to time upon not less than thirty (30) days prior written notice to Parentamend, modify or waive any agreement in the name of each Selling Shareholder as if such Selling Shareholder had himself amended, modified or waived such agreement; provided, however, provided that the Shareholder Representative may not shall have no power to alter any term of this Agreement which would reduce the amount or change the type of Merger Consideration to be removed received by any Selling Shareholder unless holders of a two-thirds (2/3) interest majority of the Escrow Fund agree to such removal and to the identity Selling Shareholders shall so agree. In particular, but not by way of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoinglimitation, the Shareholder Representative shall have the full power to make and authority to interpret all the terms and provisions of carry out decisions under this Agreement or in furtherance of the Transactions on behalf of each Selling Shareholder and to consent to any amendment hereof thereof in its capacity sign documents and make filings on behalf of each Selling Shareholder as if such Selling Shareholder Representativehad himself or itself signed or filed such document.
(b) 15.16.3 Each Selling Shareholder understands and agrees that this appointment is irrevocable.
15.16.4 The Shareholder Representative shall not be liable for may resign at any act done or omitted hereunder as time. Upon such resignation, each Selling Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify hereby authorizes the Shareholder Representative to appoint a new Shareholder Representative to replace such resigning Shareholder Representative with the same powers and hold duties as such resigning Shareholder Representative, provided that such newly appointed Shareholder Representative shall have been a Selling Shareholder immediately prior to the First Merger Effective Time.
15.16.5 If the Shareholder Representative harmless against or any losssuccessor shall die, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of become unable to act as the Shareholder Representative, including an amendment, extension or waiver of this Agreement, a replacement shall constitute promptly be appointed by a decision writing signed by Selling Shareholders who received a majority of the Shareholders and shall be finalMerger Consideration, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any provided that such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the newly appointed Shareholder Representative shall not be liable have been a Selling Shareholder immediately prior to any Shareholderthe First Merger Effective Time. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.[Signature page follows]
Appears in 1 contract
Sources: Merger Agreement (Halifax Corp)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each Each of the Shareholders shall be deemed to have agreed to appoint TCB as its hereby appoints Bori▇ ▇▇▇▇▇▇▇▇▇, ▇▇s agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent of shares of Parent Common Stock and/or cash from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to ParentParent and the Escrow Agent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representative. After all claims for Losses by Parent set forth in Officer's Certificates delivered to the Escrow Agent and the Shareholder Representative Expenses”). This indemnification shall survive termination has been satisfied, or reserved against, the Shareholder Representative, with the consent of this Agreement. the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Shareholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of Representative pursuant to this Agreement, Agreement shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such adviceIn addition, the Shareholder Representative shall not be liable Representative, with the written concurrence of Messrs. Hill and Dancu, may agree to any Shareholderthe amendment, extension or waiver of this Agreement pursuant to Sections 8.1 and 8.2 hereof. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Shareholder Representative shall be entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Shareholders.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders Richard A. Butler shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators initial representative ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Participants with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate their interests in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Holdback Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesHoldback Consideration. Notices or communications Subject to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have promptly and completely exercise such authority in a timely manner to:
(i) participate in, represent and bind the full power Holdback Participants in all respects with respect to any arbitration or legal proceeding relating to this Holdback Escrow Agreement, including, without limitation, the defense and authority settlement of any matter, and the calculation thereof for every purpose thereunder, consent to interpret all the terms and provisions of this Agreement jurisdiction, to enter into any settlement, and to consent entry of judgment, each with respect to any amendment hereof thereof or all of the Holdback 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 its capacity order to fully effectuate the transactions contemplated by this Holdback Escrow Agreement; provided that, the responsibility for seeking Resolution of Assets shall be that of American, ASC and the Bank pursuant to this Holdback Escrow Agreement; and
(iv) execute and deliver any instrument or document that the Shareholders Representative deems necessary or desirable in the exercise of his authority under this Holdback Escrow Agreement.
(b) If any Shareholder 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 the Escrow Agent, a replacement Shareholder Representative.
(bc) Compensation to Shareholder Representative at the hourly rate of $175 and any reasonable costs and expenses incurred by the Shareholder Representative in connection with actions taken pursuant to or permitted by this section will initially be reimbursed by the Bank and deducted from the Holdback Escrow.
(d) All parties hereto shall be entitled to rely on all actions and communications of any such Shareholder Representative as being genuine and binding on all of the Holdback Participants.
(e) The Shareholder Representative shall not be liable have no liability to any Holdback Participants for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify omission or obligation hereunder, unless such action or inaction results from the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without Representative's gross negligence or bad faith on the part willful misconduct. The duties and responsibilities 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 hereunder shall be determined solely by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination express provisions of this Agreement. A decision, act, consent Holdback Escrow Agreement and no other or instruction of the Shareholder Representative, including an amendment, extension further duties or waiver of this Agreement, shall constitute a decision of the Shareholders and responsibilities shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representativeimplied.
Appears in 1 contract
Sources: Merger Agreement (Peoples Community Bancorp Inc /Md/)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized shall have the exclusive authority to give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communicationscommunications pursuant to the terms of this Article 6 solely with respect to indemnification claims by the Terra Tech Indemnified Parties to be satisfied solely by the delivery of Holdback Shares to the Terra Tech Indemnified Parties, to authorize payment delivery to any the Terra Tech Indemnified Party from Parties of the Escrow Fund Holdback Shares in satisfaction of indemnification claims by any the Terra Tech Indemnified PartyParties as contemplated by Section 6.3, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration take legal actions and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders indemnification claims by the Terra Tech Indemnified Parties that will or may be paid or otherwise satisfied solely by the delivery of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated herebyHoldback Shares, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fundforegoing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any no compensation for its servicesservices rendered. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, Company Shareholders solely with respect to indemnification claims by the Shareholder Representative shall have Terra Tech Indemnified Parties to be satisfied solely by the full power and authority delivery of Holdback Shares to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representativeapplicable Terra Tech Indemnified Parties.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder in her capacity as Shareholder Representative while acting in good faith Representative, except to the extent she has acted with willful misconduct, and in any act done or omitted pursuant to the exercise advice of reasonable judgmentcounsel shall be conclusive evidence that she did not act with gross negligence or willful misconduct. The other Shareholders shall severally and not jointly indemnify the Shareholder Representative and hold the Shareholder Representative her harmless against any loss, liability or expense incurred without gross negligence or bad in good 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 any out-of-pocket costs and expenses and legal fees and expenses of any other legal counsel retained costs reasonably incurred by the Shareholder Representative (“"Outstanding Shareholder Representative Expenses”"). This indemnification shall survive termination If not paid directly to the Shareholder Representative by the Company Shareholders, such losses, liabilities or expenses may be recovered by the Shareholder Representative from the Escrow Shares (if any) that otherwise would be distributed to the Company Shareholders hereunder, and such recovery (if any) of this Agreement. Outstanding Shareholder Representative Expenses from such Escrow Shares will be made from the Company Shareholders according to their respective Pro Rata Shares.
(c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all the Company Shareholders and shall be final, binding and conclusive upon each of the Company Shareholders; , and the Escrow Agent and Parent Terra Tech may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each of the Company Shareholders. The .
(d) Notwithstanding the foregoing, the Shareholder Representative may in all questions arising will not take any action required or authorized under this Agreement seek advice without the prior written consent of legal counsel▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ acting on behalf of the Management Group (the "Management Group Representative"), which consent shall not be unreasonably withheld, delayed, denied, or conditioned. The Management Group Representative may be replaced at any time by the affirmative written consent of holders of a majority of the Shares held by the Management Group (measured as of immediately prior to the Closing). In the event the Shareholder Representative and for anything done, omitted the Management Group Representative are unable to agree on an action required or suffered in good faith permitted to be taken by the Shareholder Representative hereunder, such matter will be decided by written consent of holders of a majority of the Shares held by all Company Shareholders (measured as of immediately prior to Closing), or their respective heirs and assigns, and such decision shall be binding on all Company Shareholders. In the event of a deadlock after all Company Shareholders vote, the matter under consideration will be decided pursuant to the disputes resolution procedure set forth in Section 6.7(e) immediately below.
(e) The exclusive method for resolving any and all disputes, claims or controversies arising out of or relating to this Section 6.7, shall be final and binding arbitration before JAMS, or its successors. Either the Shareholder Representative of the Management Group Representative may commence the arbitration process called for in this Section 6.7 by filing a written demand for arbitration with JAMS, with a copy to all of the Company Shareholders. Notwithstanding the amount or issue in dispute, the arbitration will administered in accordance with the Streamlined Arbitration Rules and Procedures (the "Rules") in effect at the time of filing of the demand for arbitration, and conducted at a location determined by the arbitrator within Alameda County, California. The arbitrator shall be a retired judge with significant experience resolving commercial disputes. The arbitrator's fees in connection with any such advicearbitration proceeding shall initially be shared equally among the Company Shareholders, subject to any reallocation in accordance with the arbitrator's decision. The arbitrator will also have the authority to award reimbursement of reasonable attorney's fees to the prevailing party to be shared by one or both of the other parties as determined by the arbitrator. In light of the parties' desire to proceed informally, expeditiously and at minimal expense, the Shareholder Representative shall not be liable parties agree to waive all discovery and any Shareholderoral hearing and to submit all disputes to the arbitrator based solely upon written submissions. The Escrow Agent arbitrator shall apply the substantive and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction procedural laws of the Shareholder Representative.State of California, without regard to the conflicts of law principles of such state. The arbitrator's decision and award shall be rendered in writing with counterpart copies to all parties. Judgment upon an arbitration may be entered in any court having competent jurisdiction thereof, and shall be binding, final and non-appealable. In the event of any conflict between this Section 6.7(e) and the Rules, this Section 6.7(e) shall govern and control. For the avoidance of doubt, the arbitration procedure in this Section 6.7(e) shall only apply to disputes among Company Shareholders with respect to this Section 6.7, and any other disputes under this Agreement may be resolved in any court of competent jurisdiction in accordance with Section 11.6
Appears in 1 contract
Sources: Merger Agreement (Terra Tech Corp.)
Shareholder Representative. (a) By virtue of the approval of the Merger and Concurrently with approving this Agreement by and the requisite vote of the ShareholdersMerger, each of the Shareholders shall be deemed to have agreed to appoint TCB an individual or entity as its their agent and attorney-in-fact, as the Shareholder Representative shareholder representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by (the "Shareholder Representative. The Shareholder Representative is authorized "), to give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such paymentsretention, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) majority interest of the Escrow Fund Shareholders agree to such removal and to the identity of the substituted agent. A 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 in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement 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 the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are is hereby relieved from any liability to any person for
(d) Subject to Parent's prior claims for any decisionindemnification against the Escrow Fund, act, consent or instruction of the Shareholder RepresentativeRepresentative shall be entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Shareholders.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger The parties agree that ▇▇▇▇▇▇▇ ▇▇▇ and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, ▇▇▇▇ ▇▇▇▇▇▇▇▇ are hereby appointed as the Shareholder Representative joint representative for and on behalf of the Shareholders shareholders of HeritageBanc (such Persons, and any other Person duly appointed pursuant to this Agreement, serving as such a representative, the ”Shareholder Representative”) to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this AgreementAgreement upon and after the Closing Date. Such agency may Notwithstanding the initial appointment of two Persons as the Shareholder Representative, there shall be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, no requirement that the Shareholder Representative may not be removed unless holders comprised of a two-thirds (2/3) interest of the Escrow Fund agree to such removal two Persons, and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fundshares of HeritageBanc Common Stock may replace or remove any Person serving as the Shareholder Representative upon not less than ten (10) days’ prior written notice to Old Second. If there are two Persons serving as the Shareholder Representative, the Shareholder Representative may act only with the concurrence of both such Persons and all writings to be signed by the Shareholder Representative must be executed by both such Persons. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not be entitled to receive any compensation for its serviceshis or her services except as otherwise set forth in this Section 3.6. Notices or of communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, shareholders of HeritageBanc. If any Person serving as the Shareholder Representative shall have is no longer able or willing to serve as the full power Shareholder Representative, a new Shareholder Representative may be chosen by the holders of a majority of the shares of HeritageBanc Common Stock.
(b) Reasonable and authority to interpret all necessary fees and expenses incurred by the terms and provisions of this Agreement and to consent to any amendment hereof thereof Shareholder Representative, in its capacity as Shareholder Representative, after the Closing Date shall be reimbursed to the Shareholder Representative by Old Second promptly upon receipt of appropriate documentation of such fees and expenses.
(bc) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative in such capacity while acting in good faith faith, and in any act done or omitted pursuant to the exercise advice of reasonable judgmentcounsel shall be conclusive evidence of such good faith. The Shareholders shareholders of HeritageBanc shall jointly and severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without bad faith, gross negligence or bad faith on the part of the Shareholder Representative 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 Shareholder Representative’s duties hereunderadvice of such counsel or experts. Notwithstanding anything set forth in this subparagraph (c) and in subparagraph (b) above, including the reasonable Old Second shall only be liable for fees and expenses of any one legal counsel retained by the Shareholder Representative and one tax expert.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such d) Any decision, act, consent or instruction of the Shareholder Representative as being after the decision, act, consent or instruction Effective Time in the scope of the Shareholders. The Shareholder Representative may Representative’s authority as provided in the first sentence of Section 3.6(a)shall constitute a decision of all questions arising under this Agreement seek advice shareholders of legal counselHeritageBanc and shall be final, binding and conclusive upon every shareholder of HeritageBanc, and for anything done, omitted or suffered in good faith by Old Second and the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for Surviving Corporation may rely upon any decision, act, consent or instruction (in each case whether given orally or in writing) of the Shareholder Representative.
(e) The adoption of this Agreement and the approval of the Merger and the Contemplated Transactions by the shareholders of HeritageBanc shall constitute approval and ratification by such Persons of: (i) this Agreement and all of the arrangements relating thereto; (ii) the appointment of the Shareholder Representative pursuant to this Agreement; and (iii) the performance of all duties described in this Agreement by the Shareholder Representative on their behalf.
(f) The provisions of this Section 3.6 are intended to be for the benefit of and shall be enforceable by the Shareholder Representative and Old Second.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of this Agreement and the Merger and this Agreement by the requisite vote Company's Board of Directors and the Company Shareholders, each and effective upon such approval, and without further act of the Shareholders any Company Shareholder, ▇▇▇▇▇ ▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for each Company Shareholder, as the Shareholder Representative for and on behalf of the Shareholders Company Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by foregoing. The Shareholder Representative shall have the terms of this Agreement. Such right to resign and such agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the -------- ------- Shareholder Representative may not be removed unless holders of a two-thirds (2/3) majority in interest of in the Escrow Fund agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest of in the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its serviceshis or her services from the Parent or the Company. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholder.
(b) 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 Company 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 gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all Company Shareholders for whom a portion of the Shareholders Escrow Amount otherwise issuable to them is deposited in the Escrow Fund and shall be final, binding and conclusive upon the each of such Company Shareholders; , and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with every such advice, the Shareholder Representative shall not be liable to any Company Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB D▇▇▇▇▇ ▇. ▇▇▇▇▇ as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive Following the termination of this Agreementthe Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Shareholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement 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 the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders The Shareholder Representative shall be deemed to have agreed to appoint TCB constituted and appointed as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of each Shareholder to execute and deliver the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Escrow Agreement, including without limitation giving to give and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiatenegotiate and enter into, enter into settlements on behalf of the Shareholders, as applicable, amendments, consents and compromises ofwaivers under this Agreement and the Escrow Agreement, pursuant to the terms set forth herein and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claimstherein, to assertmake and receive payments on behalf of the Shareholders pursuant to the terms set forth herein and the Escrow Agreement, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any to take such other claim actions as authorized by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or and the transactions contemplated herebyEscrow Agreement, 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 Agreementforegoing. 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 the Closing Date (the “Majority Shareholders”), from time to time upon not less than thirty (30) days ten days’ prior written notice to Parent; provided, however, that Purchaser. If at any time the Shareholder Representative may not be removed unless holders resigns or becomes incapable of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by acting, the holders of a majority in interest 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 the Closing Date shall choose another Person, to act as the Shareholder Representative under this Agreement and the Escrow FundAgreement. The Company Indemnified Persons may not make a claim for indemnity against Purchaser under Section 9.3 except through the Shareholder Representative. The Shareholder Representative may enforce, prosecute and settle any such claim without any directions from the Company Indemnified Persons, and all acts and decisions of the Shareholder Representative in connection with 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 not receive any no compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not will be liable for any act done or omitted hereunder entitled to engage such counsel, accountants, experts and other agents as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability deems necessary or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or proper in connection with performing its obligations hereunder and under the acceptance or administration of the Shareholder Representative’s duties hereunderEscrow Agreement, including the reasonable fees and expenses of any legal counsel retained will be promptly reimbursed by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decisionShareholders for all reasonable expenses, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders disbursements and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith advances incurred by the Shareholder Representative in accordance with such advicecapacity upon demand, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction pro rata based upon each such holder’s pro rata share of the Shareholder Representative.total outstanding shares of Company Common Stock as of the
Appears in 1 contract
Sources: Merger Agreement (Clarcor Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote Each of the Shareholders, each of Optionholders and Redemption Shareholders (the Shareholders "Represented Parties") shall be deemed to have agreed to appoint TCB ▇▇▇ ▇▇▇▇▇▇▇▇▇ as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Represented Parties to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Parent Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, Parent Escrow Fund and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. EXECUTION VERSION Such agency may be changed by the Represented Parties from time to time upon not less than thirty (30) 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of Represented Parties with at least a two-thirds (2/32/3rds) interest of the Parent Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders Represented Parties of at least a majority in interest of the Parent Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret Represented Parties as it sent or received from all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeRepresented Parties.
(b) 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 Represented Parties on whose behalf the Parent Escrow Amount was contributed to the Parent Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this AgreementRepresentative. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of the Shareholders Represented Parties and shall be final, binding and conclusive upon the ShareholdersRepresented Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any ShareholderRepresented Parties. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(c) The Company Escrow Fund shall be available solely to the Shareholder Representative for purposes of funding any fees and expenses incurred in connection with defending any indemnification claim under this Article VIII or the Shareholder Representative's fulfillment of any of its obligations as Shareholder Representative under this Agreement or any Related Agreement. The Shareholder Representative may choose the Company Escrow Agent in his sole discretion. The Company Escrow Agreement shall be executed by the Shareholder Representative and the Company Escrow Agent and shall be in such form as the Shareholder Representative determines in its sole discretion. The Company Escrow Fund shall be drawn upon in the sole discretion of the Shareholder Representative for the purposes set forth in the first sentence of this Section 8.6(c). Any amounts remaining in the Company Escrow Fund at the end of the Escrow Period shall be distributed in the same manner and upon the same timing as any remaining funds would be distributed from the Parent Escrow Fund following the Escrow Period.
Appears in 1 contract
Shareholder Representative. (a) By virtue of The Designated Shareholders and the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Other Shareholders shall designate a representative prior to the Closing Date to be deemed to have agreed to appoint TCB constituted and appointed as its agent and attorney-in-fact, as the ("Shareholder Representative Representative") for and on behalf of the Designated Shareholders and Other Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to agree to, negotiate, and enter into, on behalf of all Designated Shareholders and Other Shareholders, amendments, consents and waivers under this Agreement (including Section 5.2 hereof) and the Escrow Agreement, to enter into and administer, on behalf of the Designated Shareholders or Other Shareholders, the Escrow Agreement, to authorize payment delivery to any Indemnified Party Parent of the Common Stock or other property from the Escrow Fund in satisfaction of indemnification claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply in accordance with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated herebyEscrow Agreement, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parentforegoing; provided, however, that the Shareholder Representative may shall not be removed unless holders agree to any amendment that would materially adversely affect the rights of a two-thirds (2/3) interest any Designated Shareholder or Other Shareholder without the written consent of Indemnitors holding greater than 50% of the Escrow Fund agree to such removal and shares of Common Stock received by all Indemnitors pursuant to the identity Merger, or that adversely affects any Designated Shareholder or Other Shareholder disproportionately from other parties without the consent of the substituted agentsuch Designated Shareholder or Other Shareholders. A vacancy in the position of Shareholder Representative Such agency may be filled changed by the holders of a majority in interest of the Escrow FundDesignated Shareholders and Other Shareholders from time to time upon not less than 10 days' prior written notice to Parent. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any no compensation for its his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power Designated Shareholders and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeOther Shareholders.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. The Shareholders Company shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s his duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative .
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. c) The Shareholder Representative may in all questions arising under this Agreement seek advice shall have reasonable access to information about the Company and the reasonable assistance of legal counselthe Company's and Parent's officers and employees for purposes of performing its duties and exercising its rights hereunder, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, provided that the Shareholder Representative shall treat confidentially and not be liable disclose any nonpublic information from or about the Company or Parent to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability anyone (except on a need to any person for any decision, act, consent or instruction of the Shareholder Representativeknow basis to individuals who agree to treat such information confidentially).
Appears in 1 contract
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for each Company Shareholder, as the Shareholder Representative for and on behalf of shareholders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the shareholders of the Company from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each of the approval Company Shareholders hereby appoints (and by his execution of the Merger and this Agreement by as Shareholder Representative, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby accepts his appointment) as the requisite vote of the Shareholderstrue, each of the Shareholders shall be deemed to have agreed to appoint TCB as its exclusive and lawful agent and attorney-in-fact, of the Company Shareholders to act in the name, place and stead of the Company Shareholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and provisions of this Agreement, and to act on behalf of the Company Shareholders in any Proceeding or Dispute involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents on behalf of the Company Shareholders as the Shareholder Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including the power:
(i) to act for and the Company Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Company Shareholders and to take transact matters of arbitration or other Proceedings;
(ii) to execute and deliver all actions under this Agreement amendments, waivers, Ancillary Agreements, stock powers, certificates and documents that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) deems necessary or appropriate in connection with the judgment consummation of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated transactions contemplated by the terms of this Agreement. Such agency may be changed from time ;
(iii) to time upon not less than thirty (30) days prior written notice execute and deliver all amendments and waivers to Parent; provided, however, this Agreement that the Shareholder Representative may not be removed unless holders deems necessary or appropriate, whether prior to, at or after the Closing;
(iv) to receive funds for the payment of a two-thirds (2/3) interest expenses of the Escrow Fund agree Company Shareholders and apply such funds in payment for such expenses; and
(v) to such removal and do or refrain from doing any further act or deed on behalf of the Company Shareholders that the Shareholder Representative deems necessary or appropriate in his sole discretion relating to the identity subject matter of this Agreement as fully and completely as the substituted agent. A vacancy in the position of Company Shareholders could do if personally present.
(b) The Shareholder Representative may be filled removed or replaced only upon delivery of written notice to Parent by each of the Company Shareholders. Parent, the Surviving Company and any other Person may conclusively and absolutely rely, without inquiry, upon any written instrument delivered by the holders of a majority Shareholder Representative in interest of the Escrow Fundall matters referred to herein. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its its, his or her services. Notices or communications to or from ; provided, that the Shareholder Representative shall constitute notice be entitled to or from reimbursements of expenses pursuant to Section 12.09(d). The Shareholder Representative shall act for the Shareholders. Without limiting the generality Company Shareholders on all of the foregoingmatters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interest of the Company Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall have not be responsible or liable to the full power and authority Company Shareholders for any Damages the Company Shareholders may suffer by the performance of its duties under this Agreement, other than Damage arising from willful misconduct in the performance of his, her or its duties under this Agreement. The Shareholder Representative shall incur no liability to interpret all the terms and provisions of this Agreement and to consent Company Shareholders with respect to any amendment hereof thereof action taken, omitted to be taken or suffered by them in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him, her or it to be genuinely and duly authorized, nor for any other action or inaction except its capacity as own willful misconduct. The Shareholder Representative.
(b) The Representative may, in all questions arising under this Agreement, or any other agreement, rely on the advice of counsel and the Shareholder Representative shall not be liable to the Company Shareholders for any act done anything done, omitted or omitted hereunder as Shareholder Representative while acting suffered in good faith and in by the exercise of reasonable judgmentShareholder Representative based on such advice. The Shareholder Representative is authorized by the Company Shareholders shall to incur expenses on behalf of the Company Shareholders in acting hereunder. The parties hereto understand and agree that the Shareholder Representative is acting solely on behalf of and as agent for the Company Shareholders and not in his or her personal capacity.
(c) Each Company Shareholder agrees to indemnify the Shareholder Representative for its respective Pro Rata Share of any and hold all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative) or disbursements of any kind or nature whatsoever which may at any time be imposed on or incurred by the Shareholder Representative harmless against in any loss, liability way relating to or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunderhereunder or this Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Company Shareholder shall be liable for any of the foregoing to the extent they arise from the Shareholder Representative’s willful misconduct.
(d) All reasonable and documented out-of-pocket expenses, including the reasonable legal fees and expenses of any legal counsel retained and fees, in each such case, incurred by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of in fulfilling the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction duties of the Shareholder Representative as being agent for the decision, act, consent Company Shareholders hereunder shall be paid or instruction reimbursed by the Company Shareholders based on their Pro Rata Share. Without limiting the generality of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such adviceforegoing, the Shareholder Representative shall not be liable is authorized to any Shareholder. The Escrow Agent and Parent are hereby relieved deduct from any liability payment due to the Company Shareholders pursuant to this Agreement the amount of any person for any decision, act, consent or instruction of the Shareholder Representativereimbursement.
Appears in 1 contract
Sources: Merger Agreement (Universal Truckload Services, Inc.)
Shareholder Representative. (a) By virtue Each Principal Shareholder hereby irrevocably authorizes and appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the "SHAREHOLDER REPRESENTATIVE"), with full power of the approval of the Merger substitution and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-factresubstitution, as his or its representative and agent in connection with the Merger.
(b) Each Principal Shareholder agrees that the Shareholder Representative for shall have the full power, authority and on behalf of the Shareholders right to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized perform, do and empowered to take any and all actions which it believes are reasonably he deems necessary or appropriate under advisable to carry out the purposes of this Agreement, including Agreement and each Operative Document all without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object liability to such paymentsPrincipal Shareholder (except as expressly stated herein or therein), to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim so long as same are carried out by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementin good faith. Such agency may be changed from time actions include the power to time upon not less than thirty (30) days prior written notice to Parentamend, 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, however, provided that the Shareholder Representative may not shall have no power to alter any term of this Agreement which would reduce the amount or change the type of consideration to be removed unless holders of a two-thirds (2/3) interest received by any Shareholder in respect of the Escrow Fund agree to such removal and to the identity Merger unless a majority of the substituted agentShareholders shall so agree. A vacancy in the position In particular, but not by way of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoinglimitation, the Shareholder Representative shall have the full power to make and authority to interpret all the terms and provisions of carry out decisions under this Agreement and the Operative Documents on behalf of each Principal Shareholder and to consent to any amendment hereof thereof in its capacity sign documents and make filings on behalf of each Principal Shareholder as if such Principal Shareholder Representativehad himself or itself signed or filed such document.
(bc) Each Principal Shareholder understands that this appointment is irrevocable.
(d) The Shareholder Representative shall not be liable for may resign at any act done or omitted hereunder as time. Upon such resignation, each Principal Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify hereby authorizes the Shareholder Representative to appoint a new Shareholder Representative to replace such resigning Shareholder Representative with the same powers and hold 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 harmless against or any losssuccessor shall die, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of become unable to act as the Shareholder Representative, including an amendment, extension or waiver of this Agreement, a replacement shall constitute promptly be appointed by a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith writing signed by the Shareholder Representative in accordance with other Principal Shareholders, provided that such advice, the newly appointed Shareholder Representative shall not be liable have been a Principal Shareholder immediately prior to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder RepresentativeEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Shopnow Com Inc)
Shareholder Representative. (aA) By virtue of the approval of the Merger and approving this Agreement by and accepting Merger Consideration, the requisite vote of the Shareholders, each of the Participating Shareholders shall appoint Eric Garfield as "SHAREHOLDER REPRESENTATIVE". The Shareholder Represe▇▇▇▇▇▇▇ ▇▇▇▇ be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as fact for and on behalf of each of the Participating Shareholders and shall have full power and authority to represent all of the Participating Shareholders and their successors with respect to all matters arising under this 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 and 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 Shareholders Participating Shareholders, as fully as if he were acting on his own behalf, including, without limitation, consenting to, compromising or settling issues with respect to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any Escrow and all actions which it believes are reasonably necessary or appropriate such indemnity claims with Parent under this Agreement, including without limitation giving taking any and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary specified in or appropriate contemplated by this Agreement, and engaging counsel, or accountants in the judgment of the Shareholder Representative for the accomplishment of connection with the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholdersmatters. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity 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 when and if it becomes payable hereunder from time to time upon not less than ten days prior written notice to Parent. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services but shall be entitled to be reimbursed by the Participating Shareholders for reasonable expenses incurred in the performance of his duties hereunder, including expenses of legal counsel. All such expenses shall be payable from the Escrow, if sufficient.
(bB) The Shareholder Representative shall not be liable to the 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 Participating Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative his harmless from and against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or and administration of the Shareholder Representative’s his duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the .
(C) The Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about Parent or the Company to anyone (“Shareholder Representative Expenses”except on a need to know basis to individuals who agree to treat such information confidentially). This indemnification shall survive termination of this Agreement. .
(D) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all the Participating Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent each such Shareholder, and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with every such advice, the Shareholder Representative shall not be liable to any Shareholder. The Custodian under the Escrow Agent Agreement, Parent and Parent the Company are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB J▇▇▇ ▇▇▇▇▇▇▇▇ as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, Escrow Fund and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/32/3rds) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this AgreementRepresentative. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Altiris Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB Shasta Ventures II, L.P. as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to agree to the adjustment (if any) of the Aggregate Consideration Amount pursuant to the terms of the Article VIII, to authorize payment to any Indemnified Party deductions from the Escrow Fund and a proportionate forfeiture of the Founder’s Holdback Shares pursuant to the Stock Consideration Agreements, in satisfaction of claims by any Indemnified Party, to object to such the foregoing adjustments or payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or Party, any dispute between any Indemnified Party and any such Shareholder, any dispute relating to the Company Assumed Liabilities Report, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i1) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing foregoing, or (ii2) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Total Escrow Fund Amount agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Total Escrow FundAmount. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification Following the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall survive termination have the right to recover Shareholder Representative Expenses from the Escrow Fund (and the Founders agree to pay the Shareholder Representative their Pro Rata Portion of this Agreementsuch amount) prior to any distribution to the Shareholders, and prior to any such distribution, shall deliver to Parent and the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred and the amount in cash to be distributed as satisfaction of such expenses. The Escrow Agent shall be entitled to rely upon such certificate and shall have no duty to investigate or confirm its accuracy. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 9.4 and Section 9.5 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counselParent, Sub and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Payment Agent and Parent are is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Shanda Games LTD)
Shareholder Representative. (a) By virtue Sybll ▇. ▇▇▇▇▇▇ is hereby appointed as the agent and attorney in fact of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, Company Indemnifying Parties as the Shareholder Representative for and on behalf of the Shareholders Company Indemnifying Parties to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Company Indemnifying Parties from time to time upon not less than thirty ten (3010) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in majority-in-interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Indemnifying Parties.
(b) The Shareholder Representative shall not be paid any fee for services to be rendered hereunder. All reasonable fees and expenses incurred by the Shareholder Representative in performing her duties hereunder or under the Escrow Agreement shall be borne severally by the Company Indemnifying Parties, based on their Pro Rata Portion; provided, however, that, to the extent practical, the Shareholder Representative shall deduct such fees and expenses from the amounts otherwise distributable to the Company Indemnifying Parties under this Agreement. In particular and without limitation, the Shareholder Representative shall hold back the sum of seventy-five thousand Dollars ($75,000) from amounts otherwise distributable to the Company Indemnifying Parties under this Agreement (the “Holdback Amount”), which may be used to pay transaction and other administrative expenses, in addition to other fees and expenses incurred in her performance of her duties and responsibilities hereunder. At such time that the Shareholder Representative believes, in her sole discretion, that all or any portion of the Holdback Amount is no longer required for the above uses, the Shareholder Representative shall distribute such portion of the Holdback Amount to the Company Indemnifying Parties based on their Pro Rata Portion.
(c) The Shareholder Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholder Representative. Each of the Company Indemnifying Parties agrees that the Shareholder Representative shall have the full power, authority and right to perform, do and take any and all actions it deems necessary or advisable to carry out the purposes of this Agreement. In particular, but not by way of limitation, the Shareholder Representative has the power to (i) make and carry out decisions under this Agreement on behalf of each Shareholder and to sign documents and make filings on behalf of each Company Indemnifying Parties as if such Company Indemnifying Parties had itself signed or filed such document, (ii) retain attorneys, accountants and other professional service providers to assist and advise it with respect to its duties hereunder, (iii) give and receive any notices and settle any disputes under this Agreement, (iv) agree to, negotiate and enter into settlements and compromises, demand dispute resolution, and comply with orders of courts and awards of arbitrators with respect to this Agreement, and (v) give consents and instructions or contest any claims with respect to this Agreement.
(d) The Shareholder Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Company Shareholder, Company Optionholder, Parent, Sub, or any other evidence deemed by the Shareholder Representative to be reliable. The Shareholder Representative shall be fully justified in failing or refusing to take any action under this Agreement unless it shall have received such advice or concurrence of the Company Indemnifying Parties as it deems appropriate or unless it shall have been expressly indemnified to its satisfaction by the Shareholders severally based on their Pro Rata Portion against any and all liability and expense that it may incur by reason of taking or continuing to take any such action.
(e) The Shareholder Representative shall not be liable for any act done error of judgment, or any action taken or omitted hereunder to be taken hereunder, except in the case of its bad faith, gross negligence or willful misconduct, as determined by a court of competent jurisdiction. The Shareholder Representative while acting shall be entitled to consult with counsel of its choosing and shall be fully protected in any act taken, suffered or permitted by it in good faith and in accordance with the exercise advice of reasonable judgmentcounsel. The Shareholders Company Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund, severally based on their Pro Rata Portion, shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability Liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative ExpensesExpense”). This indemnification shall survive Following the termination of this Agreementthe Escrow Period and the resolution of all pending claims made by the Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover the Shareholder Representative Expenses from any remaining portion of the Escrow Fund prior to any distribution to the Company Indemnifying Parties and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. Upon receipt of such certificate, the Escrow Agent shall pay such Shareholder Representative Expenses to the Shareholder Representative. Parent agrees to consent in writing to the distribution, to the extent permitted herein, if so requested by the Escrow Agent. Notwithstanding the foregoing, the Shareholder Representative’s right to recover Shareholder Representative Expenses shall not prejudice Parent’s right to recover the full amount of indemnifiable Losses that Parent is entitled to recover from the Escrow Fund.
(f) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders Company Indemnifying Parties and shall be final, binding and conclusive upon the ShareholdersCompany Indemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any ShareholderCompany Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability Liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and Concurrently with approving this Agreement by and the requisite vote of the ShareholdersMerger, each of the Shareholders shall be deemed to have agreed to appoint TCB ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇ as its their agent and attorney-in-in- fact, as the Shareholder Representative shareholder representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by (the "Shareholder Representative. The Shareholder Representative is authorized "), to give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and -------------------------- communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such paymentsretention, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty ten (3010) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) majority interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A 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 in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement 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 the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Shareholder Representative shall be entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Shareholders.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lynuxworks Inc)
Shareholder Representative. 12.1. Effective as of, and automatically by virtue of, the Closing, there shall be (aand hereby is) By virtue appointed a representative of the approval VCB Shareholders (the "Shareholder Representative"). The Shareholder Representative and a successor thereto in the event of the Merger and this Agreement by the requisite vote death, disability or resignation of the Shareholdersinitial Shareholder Representative, each of the Shareholders shall be deemed designated and retained by VCB prior to Closing. The Shareholder Representative need not be a VCB Shareholder, but shall be a licensed attorney or certified arbitrator, mediator or dispute resolution facilitator.
12.2. With one and only one exception, following the Closing, the Shareholder Representative shall have agreed complete power and authority on behalf and as agent of all VCB Shareholders to appoint TCB as its agent make such decisions and attorney-in-fact, take such actions as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably may deem prudent, necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed advisable from time to time upon not less than thirty (30) days prior written notice with respect to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and matters arising under or related to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Representation Escrow Fund. No bond shall be required of the Shareholder Representative, Funds and the Shareholder Representative shall not receive any compensation for its servicesRepresentation Escrow Agreement. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality By way of the foregoingexample only, the Shareholder Representative shall have the full right on behalf of all VCB shareholders to compromise any General Claim. The one exception to the foregoing is that, absent a shareholder's specific written consent to the contrary, the Shareholder Representative shall have no power and or authority to interpret all the terms and provisions of this Agreement and to consent commit any VCB Shareholder to any amendment hereof thereof contract, payment, contribution, expense or liability beyond such shareholder's then-current interest in its capacity the Representation Escrow Funds.
12.3. In connection with his or her role pursuant to Section 12.2, the Shareholder Representative (and any successor thereto) shall have liability to the VCB Shareholders only for his or her gross negligence or intentional misconduct. For the avoidance of doubt, each Representative is hereby exonerated and released from and against any liability for his ordinary negligence. The Shareholder Representative (and any successor thereto) shall be reimbursed and indemnified from the Representation Escrow Funds, subordinate to BOKF's interests therein with respect to all claims, liabilities and including, without limitation, legal fees and expenses incurred in connection with his or her role as Shareholder Representative.
(b) Representative for actions and omissions not in violation of the foregoing standard. The Shareholder Representative shall receive an hourly fee for his or her services at a rate not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in to exceed $300 per hour. To the exercise extent the aggregate amount of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith General Losses approved by the Shareholder Representative in accordance with such advicethe compromise of any General Claim exceeds $500,000, the fees of the Shareholder Representative shall not be liable paid from the Representation Escrow Fund prior to any Shareholderpayment on any General Claim approved by the Shareholder Representative. The Escrow Agent and Parent are hereby relieved from In the event the aggregate amount of the General Losses approved by the Shareholder Representative in the compromise of any liability to any person for any decisionGeneral Claim does not exceed $500,000, act, consent or instruction the fees of the Shareholder RepresentativeRepresentative shall be paid by BOKF. By virtue of the Closing, each VCB Shareholder hereby appoints the Shareholder Representative as his/her/its attorney-in-fact, to execute and deliver on the shareholder's behalf such documents as the Shareholder Representative may deem expedient to fulfill his or her duties under this Section. Such appointment is coupled with an interest and therefore shall be irrevocable.
Appears in 1 contract
Shareholder Representative. (a) By virtue of In the approval of the Merger and event that this Agreement is adopted by the requisite vote of the Company Shareholders, each effective upon such vote, and without any further action of the Shareholders any Indemnifying Party, ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its the Indemnifying Parties’ agent and attorney-in-fact, fact as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators act as proxy for the Indemnifying Parties with respect to, to any other claim by any Indemnified Party against any Shareholder shareholder vote or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, consent with respect to the Parent Common Stock held in each case relating to this Agreement or the transactions contemplated herebyEscrow Fund, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than thirty fifteen (3015) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of at least a two-thirds (2/3) majority of the interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersIndemnifying Parties. Without limiting the generality The Indemnifying Parties shall, based on their Pro Rata Portions of the foregoingEscrow Fund, be responsible for the payment of all fees and expenses reasonably incurred by the Shareholder Representative in performing its duties under this Agreement, and the Shareholder Representative shall have the full power right to have any such fees and authority to interpret all expenses reimbursed from the terms and provisions of this Agreement and to consent Escrow Fund prior to any amendment hereof thereof distribution to the Indemnified Parties of any amounts in its capacity as Shareholder Representativethe Escrow Fund, to the extent available.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith faith, and in any act done or omitted to be done pursuant to the exercise advice of reasonable judgmentlegal counsel shall be conclusive evidence of such good faith. The Shareholders Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the ShareholdersIndemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any ShareholderIndemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the The Shareholders shall be deemed to have agreed to hereby appoint TCB ▇▇▇▇▇▇ ▇▇▇▇▇▇ as its their agent and attorney-in-factfact (the "Shareholder Representative"), as the Shareholder Representative for and on behalf of the Shareholders Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such paymentsclaims 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 awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated herebyobjections, 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 Agreementforegoing. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to ParentPurchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a Shareholders that held at least two-thirds (2/3) interest of the Escrow Fund Shares immediately prior to the Closing agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by the holders of Shareholders that held a majority in interest of the Escrow FundShares immediately prior to the Closing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are 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 the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Shareholder Representative. Matt d'Arbeloff (aor another person -------------------------- designated by Seller in writing to Buyer) By shall, by virtue of the approval of the Merger and this Agreement resolutions to be adopted by the requisite vote stockholders of the ShareholdersSeller, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and irrevocably appointed attorney-in-factfact and authorized and empowered to act, as the Shareholder Representative for and on behalf of any or all of the Shareholders to take all actions under shareholders of Seller (with full power of substitution) in connection with the notice provisions of this Agreement that are to be taken by Agreement, the Shareholder Representative. The Shareholder Representative is authorized Escrow Agreement, the Registration Rights Agreement, and empowered to take any and all actions which it believes such other matters as are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from for the Escrow Fund in satisfaction consummation of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or 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 all other such further actions that as are either (i) necessary or appropriate authorized in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; providedThe above-named representative, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest as well as any subsequent representative of the Escrow Fund agree to shareholders of Seller appointed by such removal and to the identity representative (or, after such representative's death or incapacity, elected by vote of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of capital stock of Seller outstanding immediately prior to the consummation of the Escrow Fundtransactions contemplated hereby), is referred to herein as the "Shareholder Representative". No bond Notwithstanding anything in this Agreement to the contrary, Buyer and each of its respective affiliates shall be required of the Shareholder Representative, entitled to rely on such appointment and treat the Shareholder Representative shall not receive any compensation for its servicesas the duly appointed attorney-in-fact of each shareholder of Seller. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable for to any act done stockholder of Seller, Seller, Buyer or any other person with respect to any action taken or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify 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 or bad faith 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’s duties Representative hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of reimburse the Shareholder Representative as being the decisionfor all reasonable expenses, actincluding without limitation reasonable legal fees and expenses, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith incurred by the Shareholder Representative in accordance connection with such advice, administration of the duties of the Shareholder Representative shall not hereunder. It is hereby agreed that any such loss, liability or expense may be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction paid out of the Shareholder Representativeescrow proceeds to which the shareholders of Seller are entitled under the Escrow Agreement.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each Target Shareholder, by the execution and delivery of this Agreement, hereby consents and agrees to the approval appointment of ▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Merger and “Shareholder Representative” for purposes of all matters expressly set forth in this Agreement by and the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Escrow Agreement that are to be taken 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 authorized reasonably acceptable to Acquiror.
(b) Each Target Shareholder hereby constitutes and empowered appoints the Shareholder Representative, including any replacement of any such Shareholder Representative, as attorney-in-fact for such Target Shareholder with full power of substitution and authority, in his discretion, to take (i) enforce this Agreement and the Escrow Agreement against the parties hereto, (ii) execute any amendment or waiver of this Agreement or the Escrow Agreement and all actions which it believes are reasonably any other document or instrument necessary or appropriate under advisable in order to carry out the provisions of this Agreement or the Escrow Agreement, including without limitation giving (iii) give and receiving receive notices and communicationscommunications and, without limiting the foregoing provisions of this Section 9.11, dispute any decision of Acquiror to authorize payment to pay itself or any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified PartyIndemnitee hereunder, to object to such payments, to (iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and to comply with orders of courts and awards of arbitrators with respect to such claimsany dispute or loss, (v) to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators make an election with respect to, to the allocation of any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute Earn-Out Payment between any Indemnified Party cash and any such Shareholder, in each case relating Acquiror Common Stock pursuant to this Agreement or the transactions contemplated hereby, Section 1.6(f)(iv)(A) and (v) to take all other actions that are either (i) necessary or appropriate on behalf of the Target Shareholders or itself in the reasonable judgment of the Shareholder Representative for the accomplishment of the foregoing foregoing. The Shareholder Representative shall be entitled to consent to any payment from the Escrow Amount or (ii) specifically mandated Aggregate Earn-Out Consideration to Acquiror. The Target Shareholders shall be responsible for the payment of all fees and expenses reasonably incurred by the terms of Shareholder Representative in performing his duties under this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the The Shareholder Representative may shall not be removed unless holders of a twouse or disclose any non-thirds public information.
(2/3c) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required All decisions of the Shareholder Representative, and including any election made by the Shareholder Representative with respect to the allocation of an Earn-Out Payment between cash and Acquiror Common Stock pursuant to Section 1.6(f)(iv)(A), may be relied upon by Acquiror and any third person, and shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power be binding and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representativeconclusive upon each Target Shareholder.
(bd) The Shareholder Representative shall not be liable liable, responsible or accountable in damages or otherwise to the Target Shareholders for any loss or damage incurred by reason of any act done or omitted hereunder as failure to act by such Shareholder Representative while acting in good faith Representative, and in the exercise of reasonable judgment. The Shareholders each Target Shareholder shall indemnify and hold harmless the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability loss or expense incurred without damage except to the extent that such loss or damage shall have been the result of the individual gross negligence or bad faith on the part willful misconduct of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By Each of the Series B Shareholders shall, by virtue of their acceptance of Parent Common Stock pursuant to the approval of the Merger and this Agreement by the requisite vote of the ShareholdersOffer, each of the Shareholders shall be deemed to have agreed to appoint TCB as ▇▇▇▇▇ ▇▇▇▇▇ its agent and attorney-in-fact, as the -48- Shareholder Representative for and on behalf of the Shareholders Series B Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent of shares of Parent Common Stock or cash from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Series B Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Series B Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 Series B Shareholders shall on whose behalf the Escrow Amount was contributed to the Escrow Fund shall, by virtue of their acceptance of Parent Common Stock pursuant to the Offer, agree to indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representative. The Shareholder Representative, with the consent of the record holders of a majority of the Parent Common Stock in the Escrow Fund, and after written notice to Parent may recover from the Escrow Fund payments for any reasonable expenses incurred in connection with the Shareholder Representative's representation hereby. The Shareholder Representative Expenses”may direct the Escrow Agent (which shall follow such directions) to deliver to the Shareholder Representative shares of Parent Common Stock in the Escrow Fund in order to permit the payment of such expenses). This indemnification shall survive termination of this Agreement. .
(c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.3 and Section 8.4 hereof, shall ----------- ----------- constitute a decision of the Series B Shareholders and shall be final, binding and conclusive upon the Series B Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Series B Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Series B Shareholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Shareholder Representative shall be entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Series B Shareholders. The Shareholder Representative may direct the Escrow Agent (which shall follow such directions) to deliver to the Shareholder Representative shares of Parent Common Stock in the Escrow Fund in order to permit the payment of such expenses.
Appears in 1 contract
Sources: Recapitalization and Exchange Offer Agreement (Internet Capital Group Inc)
Shareholder Representative. (a) By virtue Each of the approval Shareholders by acceptance of its portion of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders Shares shall be deemed to have agreed designated and appointed Henry Hernandez (and James M▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ alter▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇t that Mr. Hernandez is unable to appoint TCB se▇▇▇) ▇▇▇▇ ▇▇▇▇ power of substitution (the "Shareholder Representative") as its agent 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 attorney-in-fact, as deemed to have acknowledged that the Shareholder Representative for and on behalf of shall be the Shareholders only person authorized to take all actions under any action so required, authorized or contemplated by this Agreement by any Shareholder including the execution of all agreements and certificates referenced herein. Each Shareholder is thereby deemed to have further acknowledged that are the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such Shareholder. Each Shareholder 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. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Shareholder Representative is and are and will be entitled and authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving give notices and communications, only to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for any notice contemplated by this Agreement to be given to any such Shareholder. By the accomplishment acceptance of its portion of the foregoing Merger Consideration, each Shareholder shall be deemed to have waived any and all claims that they may have or (ii) specifically mandated by assert, including those that may arise in the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; providedfuture, however, that against the Shareholder Representative may for any action or inaction taken or not be removed unless holders of a two-thirds (2/3) interest of taken by the Escrow Fund agree to such removal and to Shareholder Representative in connection with his service as the identity of the substituted agent. A vacancy Shareholder Representative, except in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required case of the Shareholder Representative, and 's own bad faith or willful misconduct. In consideration of his agreement to serve as the -35- Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoingRepresentative, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to be released from any amendment hereof thereof liability for any action or inaction taken or not taken in its his capacity as the Shareholder Representative.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and , except in the exercise of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration case of the Shareholder Representative’s duties hereunder, including 's own bad faith or willful misconduct. Each Shareholder hereby agrees that the reasonable and customary fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith incurred by the Shareholder Representative in accordance with such advicethe 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, and each Shareholder agrees to promptly reimburse the Shareholder Representative shall not be liable with respect to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representativesuch amounts.
Appears in 1 contract
Sources: Merger Agreement (Goamerica Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and approving this Agreement and the transactions contemplated hereby or by the requisite vote executing and delivering a Letter of the ShareholdersTransmittal, each of the Shareholders Shareholder shall be deemed to have agreed to appoint TCB irrevocably authorized and appointed Shareholder Representative as its agent such Person’s representative and attorney-in-fact, as the Shareholder Representative for and fact to act on behalf of the Shareholders such Person with respect to take all actions under this Agreement that are to be taken by and the Shareholder Representative. The Shareholder Representative is authorized Escrow Agreement and empowered to take any and all actions which it believes are reasonably necessary and make any decisions required or appropriate under permitted to be taken by Shareholder Representative pursuant to this Agreement or the Escrow Agreement, including without limitation giving the exercise of the power to:
(i) give and receiving receive notices and communications, ;
(ii) authorize delivery to authorize payment to any Indemnified Party Parent of cash from the Purchase Price Adjustment Escrow Fund (or, if necessary, the Indemnification Escrow Fund) in satisfaction of any amounts owed to Parent pursuant to Section 2.12(f) or from the Indemnification Escrow Fund in satisfaction of claims for indemnification made by any Indemnified Party, Parent pursuant to object to such payments, to Article VIII;
(iii) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assertor otherwise handle any other matters described in Section 2.12(f);
(iv) agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect toto claims for indemnification made by Parent pursuant to Article VIII;
(v) litigate, arbitrate, resolve, settle or compromise any other claim by any Indemnified Party against any Shareholder for indemnification pursuant to Article VIII;
(vi) execute and deliver all documents necessary or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party desirable to carry out the intent of this Agreement and any such Shareholder, in each case relating to Ancillary Document (including the Escrow Agreement);
(vii) make all elections or decisions contemplated by this Agreement and any Ancillary Document (including the Escrow Agreement);
(viii) engage, employ or the transactions contemplated herebyappoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and
(ix) take all other actions that are either (i) necessary or appropriate in the good faith judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may Parent shall be changed from time entitled to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the deal exclusively with Shareholder Representative may not be removed unless holders of a two-thirds on all matters relating to this Agreement (2/3including Article VIII) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required entitled to rely conclusively (without further evidence of the any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by Shareholder Representative, and the on any other action taken or purported to be taken on behalf of any Shareholder Representative shall not receive any compensation for its servicesby Shareholder Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Shareholders. Without limiting the generality of the foregoing, the Any decision or action by Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to hereunder, including any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the agreement between Shareholder Representative and hold Parent relating to the Shareholder Representative harmless against any lossdefense, liability payment or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses settlement of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This claims for indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreementhereunder, shall constitute a decision or action of the all Shareholders and shall be final, binding and conclusive upon each such Person. No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction by operation of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. Law.
(b) The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counselresign at any time, and may be removed for anything done, omitted any reason or suffered in good faith no reason by the vote or written consent of a majority in interest of the Shareholders according to each Shareholder’s Pro Rata Share (the “Majority Holders”); provided, however, in no event shall Shareholder Representative resign or be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in accordance with such adviceconsent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and the Surviving Corporation shall be entitled to rely on the decisions and actions of the prior Shareholder Representative as described in Section 9.01(a) above.
(c) The Shareholder Representative shall not be liable to the Shareholders for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any Shareholderact done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Shareholder Representative shall be conclusive evidence of good faith). The Shareholders shall severally and not jointly (in accordance with their Pro Rata Shares), indemnify and hold harmless Shareholder Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with its activities as Shareholder Representative under this Agreement and the Escrow Agreement (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence, fraud, intentional misconduct or bad faith of Shareholder Representative, Shareholder Representative shall reimburse the Shareholders the amount of such indemnified Representative Loss attributable to such gross negligence, fraud, intentional misconduct or bad faith. The Representative Losses shall be satisfied: (i) from the Shareholder Representative Expense Fund; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to Shareholder Representative under (i), from the Shareholders, severally and not jointly (in accordance with their Pro Rata Shares). As soon as practicable after the date on which the final obligation of Shareholder Representative under this Agreement and the Escrow Agreement have been discharged or such other date as Shareholder Representative deems appropriate, the Escrow Agent and Parent are hereby relieved from shall pay any liability to any person for any decision, act, consent or instruction of amounts remaining in the Shareholder RepresentativeRepresentative Fund to the Shareholders in accordance with their Pro Rata Shares, as set forth in the Escrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Northwest Pipe Co)
Shareholder Representative. (a) By virtue of the approval of Pursuant to the Merger and this Agreement by Agreement, the requisite vote of Shareholder Representative shall act as the Shareholders, each agent of the Shareholders shall be deemed and is entitled to have agreed to appoint TCB as its agent give and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery by the Escrow Agent to any Indemnified Party Parent Group Members of specified amounts from the Escrow Fund Amount in satisfaction of claims by any Indemnified PartyParent Group Members, to object to such paymentsdeliveries in accordance with the terms of this Escrow Agreement, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the reasonable judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may The Person designated to be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by changed in accordance with the holders of a majority provisions set forth in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeMerger Agreement.
(b) The Shareholder Representative shall not be liable to any holder of Company Common Stock for any act done or omitted under the Merger Agreement or hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders , and any act done or omitted pursuant to the written advice of counsel shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part be conclusive evidence of such good faith.
(c) No bond shall be required of the Shareholder Representative and arising out the Shareholder Representative shall receive no compensation for his services hereunder. At least five (5) days prior to the first anniversary of or the Effective Date, the Shareholder Representative shall deliver written notice to the Escrow Agent and Parent setting forth the payment amount of the reasonable out-of-pocket expenses incurred by the Shareholder Representative in connection with his duties under the acceptance Merger Agreement and hereunder (the "SHAREHOLDER REPRESENTATIVE'S EXPENSES"), which expenses shall be reimbursed from the Escrow Amount upon written instruction of Parent and the Shareholder Representative to the extent that any such Shareholder Representative's Expenses together with any other Acquisition Expenses exceed $200,000.
(d) Neither Parent, any Parent Group Member, nor the Escrow Agent shall be responsible or administration liable for any actions taken, suffered or omitted by the Shareholder -10- 13 Representative in connection with such Shareholder Representative's capacity as such, and each of them may conclusively and fully rely on any action or writing of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative .
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. e) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of the all Shareholders and shall be final, binding and conclusive upon the Shareholders; each such Shareholder, and the Escrow Agent and Parent may conclusively and fully rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The each and every such Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted without any further inquiry or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholderinvestigation. The Escrow Agent and each Parent Group Member are hereby fully indemnified and relieved from any responsibility or liability to any person Person for any actions taken, suffered or omitted by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Indemnification and Escrow Agreement (Harris Corp /De/)
Shareholder Representative. (a) By virtue The Company Shareholders hereby authorize, direct and appoint TII Shareholder Representative, LLC to act as the Shareholder Representative, with full power of the approval substitution with respect to all matters under this Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the Merger and this Agreement by Consideration to or for the requisite vote benefit of the Company Shareholders, each of contesting and settling any and all claims for indemnification pursuant to this Agreement, resolving any other disputes hereunder, performing the Shareholders shall be deemed duties expressly assigned to have agreed the Shareholder Representative hereunder and to appoint TCB as its agent engage and attorney-in-fact, employ agents and representatives and to incur such other expenses as the Shareholder Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Shareholder Representative may request contributions in advance of making such expenditures. If it does not request a contribution in advance, the Company Shareholders will be liable on an Adjusted Pro Rata Basis to indemnify the Shareholder Representative for all such expenses, in accordance with Section 14.1(f). The Shareholder Representative shall have the sole and exclusive right on behalf of the Shareholders any Company Shareholder to take all actions any action or provide any waiver, or receive any notice with respect to any claims for indemnification under this Agreement that are and to settle any claim or controversy arising with respect thereto. Any such 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 each Company Shareholder as if such Company Shareholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Shareholder’s individual capacity, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Shareholder Representative. The Company Shareholders hereunder or any action which the Company Shareholders, at their election, have the right to take hereunder, shall be taken only by the Shareholder Representative is authorized and empowered no Company Shareholder acting on its own shall be entitled to take any and all actions which it believes are reasonably necessary such action.
(b) The appointment of the Shareholder Representative as each Company Shareholder’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other Person or appropriate under Persons to represent such Company Shareholder with regard to this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement Common Shares or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment . The appointment of the Shareholder Representative for as attorney-in-fact pursuant hereto is coupled with an interest and, subject to the accomplishment removal and replacement procedure set forth in Section 14.1(d), is irrevocable. The obligations of each Company Shareholder pursuant to this Agreement (i) will not be terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Company Shareholder or any proceeding in connection therewith, or in the foregoing case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) specifically mandated shall survive the delivery of an assignment by any Company Shareholder of the terms whole or any fraction of its interest in any payment due to it under this Agreement.
(c) Each Company Shareholder hereby waives all potential conflicts of interest arising out of the Shareholder Representative’s activities or authority as the Shareholder Representative and its relationships (or the relationships of its sole member, ▇▇▇▇ ▇▇▇▇▇▇▇) with the Company or any of its Subsidiaries or affiliates (whether before or after the Closing), whether as an employee, consultant, agent, director, officer, shareholder or other representative of the Company or any of its Affiliates.
(d) The term of the Shareholder Representative (the “Term”) shall commence on the date of this Agreement, and shall terminate upon the fifth anniversary of the Closing Date. Such agency During the Term, the Shareholder Representative shall be paid an annual fee of $5,000 (payable on the date hereof and on each anniversary until the end of the Term), and shall be paid an additional fee of $100/hr for time spent by its principals in performing the Shareholder Representative’s duties under this Agreement. The annual and hourly fees payable to the Shareholder Representative under this Section 14.1(d) are referred to collectively as the “Shareholder Rep Fees”.
(e) The Shareholder Representative may be changed from resign at any time to time upon not less than by giving written notice of resignation, at least thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity effectiveness of such resignation, to Parent and the substituted agentCompany Shareholders. A vacancy in the position of The Shareholder Representative may be filled removed at any time with or without cause by the approval of the holders of a majority in interest seventy-five percent (75%) of the Escrow Fund. No bond Common Shares held by the Company Shareholders on the Closing Date (the “Approving Holders”); the Approving Holders shall promptly notify the Shareholder Representative in writing of such removal, and such removal shall be required effective immediately upon the Shareholder Representative’s receipt of written notice. On the effective date of any such resignation or removal, the resigning or removed Shareholder Representative shall be discharged from its duties and obligations as the Shareholder Representative under this Agreement. On or prior to the effective date of any resignation or removal, the Approving Holders shall select a successor Shareholder Representative. In the case of a resigning Shareholder Representative, if no successor Shareholder Representative shall have been so appointed by the Approving Holders and shall have accepted such appointment (effective upon the effective date of resignation of the resigning Shareholder Representative), the resigning Shareholder Representative may (but shall not be obligated to), on behalf of the Approving Holders, appoint a successor Shareholder Representative. Upon its acceptance of appointment as the Shareholder Representative, and the such successor Shareholder Representative shall not receive thereupon succeed to and become vested with all the rights, powers, privileges and duties of the resigning Shareholder Representative. After any compensation for resigning Shareholder Representative’s resignation or removal hereunder as the Shareholders’ Representative, the provisions of this Section 14.1 shall inure to its servicesbenefit as to any actions taken or omitted to be taken by it while it was the Shareholder Representative. Notices or communications to or from the Any successor Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality by means of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all execution of a counterpart hereof be bound by the terms and provisions of this Agreement and applicable to consent to any amendment hereof thereof in its capacity as the Shareholder Representative.
(bf) Subject to the provisions hereof, TII Shareholder Representative, LLC hereby accepts the foregoing appointment and agrees to serve as the Shareholder Representative. The acceptance by the Shareholder Representative of the appointment is expressly subject to, and the Company Shareholders expressly acknowledge and agree to, the limitation of the liability of the Shareholder Representative as set forth below:
(i) The Shareholder Representative shall be obligated to perform only the duties specifically set forth in this Agreement and in this Agreement and shall have no implied duties or obligations.
(ii) THE SHAREHOLDER REPRESENTATIVE SHALL HAVE NO LIABILITY TO THE COMPANY SHAREHOLDERS FOR ANY ACT OR OMISSION IN THE ABSENCE OF WILLFUL MISCONDUCT ON THE PART OF SHAREHOLDER REPRESENTATIVE.
(iii) IN NO EVENT SHALL THE SHAREHOLDER REPRESENTATIVE BE LIABLE TO ANY COMPANY SHAREHOLDERS FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGE OR LOST PROFITS OR LOSS OF BUSINESS.
(iv) The Shareholder Representative may rely and shall be protected in relying upon any document or instrument believed by the Shareholder Representative to be genuine (or to be a genuine copy, facsimile, email/PDF of such document or instrument) and to have been signed by any Person, and shall not be liable for any act done action taken or omitted hereunder as in accordance with the provisions of such instrument.
(v) The Shareholder Representative while acting may, from time to time (at the expense of the Company Shareholders, as provided in good faith and Section 14.1(a)), consult with legal counsel (including, without limitation, counsel that has previously represented the Company in connection with the exercise of reasonable judgment. The Shareholders shall indemnify transactions contemplated by this Agreement) with respect to any matter arising in connection with the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability rights or expense incurred without gross negligence or bad faith on the part duties of the Shareholder Representative under this Agreement or any other document relating to the transactions contemplated by this Agreement, or in connection with the foregoing appointment, and shall not be liable to the Company Shareholders for, and shall be fully protected with respect to, any action taken or omitted in reliance upon the advice of such counsel.
(g) The Company Shareholders agree to indemnify, defend, and hold harmless the Shareholder Representative against, and promptly reimburse the Shareholder Representative the full amount of, any and all losses, claims, damages, liabilities, and expenses, including all costs of investigation and counsel fees, that may be imposed on or incurred by the Shareholder Representative in connection with its serving as Shareholder Representative under this Agreement or arising out of or in connection with the acceptance performance of its duties as Shareholder Representative. The obligation to indemnify shall include, without limitation, the following:
(i) Any and all costs, damages, losses, settlement payments, obligations, liabilities, claims, actions or administration causes of action, taxes and tax liabilities (including penalty and interest), encumbrances and expenses (including, without limitation, attorneys’ fees, interest and penalties) suffered, sustained, incurred or paid by the Shareholder Representative’s duties hereunder, including the reasonable fees ; and
(ii) All costs and expenses of any legal counsel retained (including, without limitation, attorneys’ fees, interest and penalties) incurred by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination in connection with any action, proceeding, demand, assessment or judgment arising out of or incident to any of the matters for which indemnity is provided in this Agreement. A decisionTHE OBLIGATIONS OF COMPANY SHAREHOLDERS TO INDEMNIFY, actDEFEND AND HOLD HARMLESS THE SHAREHOLDER REPRESENTATIVE SHALL APPLY NOTWITHSTANDING THAT THE DAMAGE OR LOSS WITH RESPECT TO WHICH SUCH INDEMNIFICATION APPLIES IS CAUSED, consent IN WHOLE OR IN PART, BY ANY ACT OR OMISSION OF THE SHAREHOLDER REPRESENTATIVE (INCLUDING WITHOUT LIMIATATION THE NEGLIGENCE OR GROSS NEGLIGENCE OF THE SHAREHOLDER REPRESENTATIVE), BUT SHALL NOT APPLY TO DAMAGE OR LOSS RESULTING FROM THE WILLFUL MISCONDUCT OF THE SHAREHOLDER REPRESENTATIVE.
(h) The Company Shareholders expressly authorize and direct the Shareholder Representative to fund, from the Shareholder Rep Holdback, any Shareholder Rep Fees or instruction any other amounts payable to the Shareholder Representative under this Agreement. The Company Shareholders shall be obligated to promptly fund their pro rata portion of any amounts payable to the Shareholder Representative pursuant to this Agreement that are in excess of the then funded Shareholder Rep Holdback, and the Company Shareholders’ respective liability therefor shall be determined on an Adjusted Pro Rata Basis. Furthermore, if at any time during the Term the Shareholder Representative determines that the funds remaining in the Shareholder Rep Holdback are insufficient to cover the Shareholder Rep Fees, any costs or expenses of the Shareholder Representative, including an amendment, extension Representative incurred or waiver to be incurred in connection with the carrying out of its duties pursuant to this Agreement, and any other amounts payable to the Shareholder Representative under this Agreement, the Shareholder Representative shall constitute have the right to require the Company Shareholders to provide additional funds to replenish the Shareholder Rep Holdback; provided, that in the event of such a decision request, the Company Shareholders shall be obligated to promptly fund their pro rata portion of such requested funding on an Adjusted Pro Rata Basis; and provided further, that in no event shall the balance of the Shareholders Shareholder Rep Holdback exceed $1,500,000 unless approved in writing by the Approving Holders.
(i) The Shareholder Rep Holdback shall be deposited in an interest bearing account in the name of the Shareholder Representative (the “Holdback Account”), and shall be final, binding and conclusive upon applied by the Shareholders; Shareholder Representative in accordance with this Agreement and the Escrow Agent Agreement. Upon expiration of the Term, the remaining balance of the Shareholder Rep Holdback shall be paid to the Company Shareholders on a pro rata basis, in accordance with each Company’s Shareholder’s respective aggregate contributions to the Shareholder Rep Holdback. If the Shareholder Representative resigns or is removed: (A) control of the Holdback Account shall transfer to the successor Shareholder Representative, the resigning or removed Shareholder Representative shall execute and Parent deliver any documentation necessary to transfer sole control of the Holdback Account to its successor, and (B) the resigning or removed Shareholder Representative shall prepare and deliver to its successor an accounting of the Holdback Account, demonstrating in reasonable detail all contributions to and disbursements from the Holdback Account through the date of resignation or removal.
(j) Without limiting any other provision of this Article 14, the Company Shareholders shall be obligated to designate and maintain, at all times from the Closing through the expiration of the Term, a Shareholder Representative with the power and authorities described in this Article 14. Any third party (including the Surviving Corporation and Parent) may rely upon any such decision, actwaiver, consent consent, instruction or instruction other action of the Shareholder Representative as being the decision, actwaiver, consent consent, instruction or instruction other action of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any every Company Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the The ASA Shareholders shall be deemed to have agreed to appoint TCB one person to act as its agent their representative, attorney in fact and attorney-in-factproxy with respect to certain matters specified in this Agreement, the Escrow Agreement and the Registration Rights Agreement (the "Shareholder Representative"). The ASA Shareholders have designated ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the initial Shareholder Representative. The Shareholder Representative is authorized may resign at any time, and empowered 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 take 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 and all actions which it believes are reasonably necessary or appropriate liability under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund Agreement or otherwise.
(b) 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 execute and deliver, upon the Closing, the Escrow Agreement and the Registration Rights Agreement on its behalf and agrees to be bound by the provisions thereof in satisfaction of claims by any Indemnified Partythe 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, to object to such payments, to agree to, negotiate, enter into settlements the Escrow Agreement and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators the Registration Rights Agreement (including with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating claims for indemnification pursuant to this Article 11, the Escrow Agreement or and the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Registration Rights Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent); provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest will have no obligation to act on behalf of the Escrow Fund agree to such removal ASA Shareholders, except as expressly provided herein and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, Agreement and the Shareholder Representative shall not receive any compensation for its servicesRegistration Rights Agreement. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not will at all times be liable for entitled to rely on any act done or omitted hereunder as directions received from the ASA Shareholders. The Shareholder Representative while acting shall, at the expense of the ASA Shareholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in good faith connection with exercising their powers and performing their function hereunder and (in the exercise absence of reasonable judgment. The Shareholders shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative) shall be entitled to conclusively rely on the opinions and advice of such 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 acceptance acts or administration omissions of the Shareholder Representative’s duties hereunderRepresentative hereunder or under the Escrow Agreement, including the reasonable fees and expenses Registration Rights Agreement or otherwise. The foregoing indemnification shall not apply in the event of any legal counsel retained by action or proceeding which finally adjudicates the liability of the Shareholder Representative (“hereunder for his or her gross negligence or willful misconduct. In the event of any indemnification hereunder, upon written notice from Shareholder Representative Expenses”). This to the ASA Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Shareholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such ASA Shareholder's percentage interest.
(d) All of the indemnities, immunities and powers granted to the Shareholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of Agreement and/or the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder RepresentativeRegistration Rights Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aon Corp)
Shareholder Representative. (a) By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement and approval of the Merger and this Agreement Mergers by the requisite vote of the Shareholders, each of the Shareholders Equityholders shall be deemed to have agreed to appoint TCB ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual, as its its, his or her agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Indemnifying Parties to take all actions give and receive notices and communications in respect of indemnification claims under this Agreement that are to be taken by recovered against the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communicationsHoldback Fund, to authorize payment to any Indemnified Party from the Escrow Holdback Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other such indemnification claim by any Indemnified Party hereunder against any Shareholder Indemnifying Party or by any such Shareholder Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such ShareholderIndemnifying Party, in each case relating to this Agreement or the transactions contemplated herebyTransactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-two- thirds (2/3) interest of the Escrow Holdback Fund agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, in the event of a resignation of the Shareholder Representative or other vacancy in the position of Shareholder Representative Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Holdback Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative after the Closing shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeIndemnifying Parties.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver amendment of any provision of this AgreementAgreement pursuant to Section 10.2 hereof, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent Indemnifying Parties, and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are is hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith. The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholder Representative by the Indemnifying Parties, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Holdback Fund at such time as remaining amounts would otherwise then be distributable to the Indemnifying Parties (which, for the avoidance of doubt, shall not include any amounts that remain held in the Holdback Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Shareholder Representative to be paid from the Expense Fund and the Holdback Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. The Shareholder Representative shall be entitled to use the Expense Fund in order to fund all Shareholder Representative Expenses. Following the termination of the Holdback Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses hereunder, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses incurred in excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Holdback Fund, prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to Parent a certificate setting forth the Shareholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Shareholder Representative to be paid from the Holdback Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Shareholder Representative Expenses as they are incurred, to the extent the Expense Fund is insufficient or unavailable. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany Company Shareholder, each of the Shareholders ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") -------------------------- for each Company Shareholder, as the Shareholder Representative for and on behalf of shareholders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) 30 days prior written notice to Parent; provided, however, provided that the Shareholder -------- Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersRequisite Shareholder Vote, each of the Shareholders shall be deemed to have agreed to appoint TCB ▇▇▇▇ ▇. ▇▇▇▇▇ as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund and directly against the Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless (i) during the Escrow Period (and any extension thereof) holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent and (ii) following the Escrow Period (and any extension thereof), each of the Principal Shareholders agrees to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders (including the Principal Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative).
(b) 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 indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
Shareholder Representative. (a) By virtue of The Major Shareholders hereby irrevocably constitute and appoint ATS AS in the approval of capacity as the Merger and Shareholder Representative under this Agreement by and the requisite vote of Ancillary Documents to which the ShareholdersShareholder Representative is a party or otherwise has rights in such capacity (the “Shareholder Representative Documents”), each of as the Shareholders shall be deemed to have agreed to appoint TCB as its true and lawful agent and attorney-in-factfact of such Major Shareholder with full powers of substitution to act in the name, place and stead thereof with respect to the performance on behalf of 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 for and on behalf will deem necessary or appropriate in connection with any of the transactions contemplated by the Shareholder Representative Documents.
(b) 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 as the acts of the Major Shareholders under the Shareholder Representative Documents. The Purchaser Representative, Pubco, Merger Subs, Purchaser and the Company shall be entitled to take all rely conclusively on the instructions and decisions of the Shareholder Representative as to (i) any payment instructions provided by the Shareholder Representative or (ii) any other actions under this Agreement that are required or permitted to be taken by the Shareholder Representative hereunder, and, in accordance with the Major Shareholder Irrevocable Undertakings, no Major Shareholder will have any cause of action against the Purchaser Representative, Pubco, Merger Subs, Purchaser, or the Company for any action taken by any of them in reliance upon the instructions or decisions of the Shareholder Representative. The All notices or other communications required to be made or delivered to a Major Shareholder under any Shareholder Representative is authorized and empowered Document shall be made to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment benefit of such Major Shareholder, and any notices so made shall discharge in full all notice requirements of the foregoing other parties hereto or (ii) specifically mandated thereto to such Major Shareholder with respect thereto. All notices or other communications required to be made or delivered by the terms of this Agreement. Such agency may a Major Shareholder shall be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that made by the Shareholder Representative may not be removed unless holders of (except for a two-thirds (2/3notice under Section 15.14(c) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required replacement of the Shareholder Representative, and ).
(c) If the Shareholder Representative shall not receive any compensation for die, become disabled, resign or otherwise be unable or unwilling to fulfill his, her or its services. Notices 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 communications to or from the other event, appoint a successor Shareholder Representative shall constitute notice to (by vote or from the Shareholders. Without limiting the generality written consent of the foregoingMajor 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 shall have the full power and authority to interpret all the terms and provisions Representative” for purposes of this Agreement and to consent to any amendment hereof thereof in its capacity as the other Shareholder RepresentativeRepresentative Documents.
(bd) The Shareholder Representative shall not be liable for any act done or omitted hereunder under this Agreement or any Ancillary Document as the Shareholder Representative while acting in good faith and in without willful misconduct or gross negligence, and any act done or omitted pursuant to the exercise advice of reasonable judgmentcounsel shall be conclusive evidence of such good faith. The Each of the Major Shareholders shall indemnify jointly and severally indemnify, defend and hold harmless the Shareholder Representative from and hold the Shareholder Representative harmless against any lossand all losses, liability or expense 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 or negligence, bad faith or willful misconduct on the part of the Shareholder Representative (in its capacity as such) and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunderunder 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 have the right at any time and from time to time to select and engage, at the cost and expense of the Major Shareholders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Shareholder Representative may deem necessary or appropriate from time to time. All of the indemnities, immunities, releases and powers granted to the Shareholder Representative under this Section 15.14(d) shall survive the Closings and continue indefinitely. With respect to 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 not any of the officers, directors, securityholders, employees or Affiliates of the Shareholder Representative (the “Shareholder Representative ExpensesRelated Parties”). This indemnification No Shareholder Representative Related Party shall survive termination of this Agreement. A decision, act, consent have any liability for any obligations or instruction liabilities of the Shareholder Representative, including an amendmentbut not limited to, extension for any claim based on, in respect of, or waiver of this Agreementby reason of, shall constitute a decision any failure by the Shareholder Representative of the Shareholders and shall transactions contemplated by this Agreement to be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon consummated or any such decision, act, consent breach or instruction failure of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representativeperform hereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Alussa Energy Acquisition Corp.)
Shareholder Representative. (a) By virtue the execution and delivery of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersAgreement, each of the Selling Shareholders shall be deemed to have agreed to appoint TCB hereby irrevocably constitutes and appoints R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by his execution of this Agreement, R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment) as its the true and lawful agent and attorney-in-factfact (the “Shareholder Representative”) of the Selling Shareholders to act in the name, place and stead of the Selling Shareholders in connection with the transactions contemplated by this Agreement (other than any retention agreements between Buyer and any Selling Shareholder), and to act on behalf of the Selling Shareholders in any litigation or arbitration involving this Agreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholder Representative shall deem necessary or appropriate, in connection with the transactions contemplated by this Agreement or any other Transaction Document (other than any employment agreements between the Surviving Corporation and any Selling Shareholder), including, without limitation, the power:
(a) to act for the Selling Shareholders with regard to matters pertaining to the Post-Closing Adjustment Statement and the Post-Closing Adjustment;
(b) to act for the Selling Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Selling Shareholders and to take transact matters of litigation;
(c) to execute and deliver all actions under this Agreement amendments, waivers, ancillary agreements, stock powers, certificates and documents that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) deems necessary or appropriate in connection with the judgment consummation of the transactions contemplated by this Agreement;
(d) to execute and deliver all amendments and waivers to this Agreement that the Shareholder Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(e) to receive funds for the payment of expenses of the Selling Shareholders and apply such funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the Selling Shareholders that the Shareholder Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement as fully and completely as the Selling Shareholders could do if personally present; and
(g) to receive notices and service of process in connection with any claims under this Agreement.
(h) Buyer, Merger Sub, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementin all matters referred to herein. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, The Selling Shareholders hereby confirm all that the Shareholder Representative may not shall do or cause to be removed unless holders done by virtue of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and her appointment as the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Selling Shareholders. The Shareholder Representative may shall act for the Selling Shareholders on all of the matters set forth in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the manner the Shareholder Representative believes to be in accordance the best interest of the Selling Shareholders and consistent with such advicethe obligations under this Agreement, but the Shareholder Representative shall not be liable responsible to the Selling Shareholders for any Shareholderloss or damages the Selling Shareholders may suffer by the performance of her duties under this Agreement, other than loss or damage arising from willful violation of the law or gross negligence in the performance of her duties under this Agreement.
(i) Upon the Closing, the Company shall wire $500,000 (the “Expense Fund”) to an account designated by the Shareholder Representative, which will be used for the purposes of paying directly, or reimbursing the Shareholder Representative for, any third party expenses pursuant to this Agreement and the other Transaction Documents or for satisfying certain Claims pursuant to Section 8.4(f). The Escrow Agent Selling Shareholders will not receive any interest or earnings on the Expense Fund and Parent are hereby relieved from irrevocably transfer and assign to the Shareholder Representative any liability to ownership right that they may otherwise have had in any person such interest or earnings. The Shareholder Representative will not be liable for any decisionloss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholder Representative will hold these funds separate from its unrelated funds, act, consent or instruction will not use these funds for any unrelated purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Shareholder Representative’s responsibilities, the Shareholder Representative will deliver any remaining balance of the Expense Fund to the Selling Shareholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Selling Shareholders at the time of Closing.
(j) The initial Shareholder Representative shall appoint his or her successor Shareholder Representative, or if the initial Shareholder Representative dies or becomes disabled (such that he or she cannot perform his or her duties as Shareholder Representative or to appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be Cohiba Retained Assets, LLC. If any successor Shareholder Representative dies or becomes disabled (such that he or she could - 68 - not perform his or her duties as Shareholder Representative or to appoint a successor Shareholder Representative) or is otherwise unable or unwilling to appoint a successor then the successor Shareholder Representative shall be elected by a vote of a majority of the shares of Capital Stock then held by the Selling Shareholders (or by the estate of a deceased Selling Shareholder).
Appears in 1 contract
Shareholder Representative. (a) By virtue Each of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB Indemnifying Securityholders hereby appoints EK Holdings as its agent and attorney-in-fact, as the Shareholder Representative (the "Shareholder Representative") for and on behalf of the Shareholders Indemnifying Securityholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of either of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer of EK Holdings, shall be the only person authorized to take any of the foregoing actions for EK Holdings, in its capacity as Shareholder Representative hereunder. Such agency may be changed by the Indemnifying Securityholders, as the case may be, from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, by any four (4) of the six (6) Principal Shareholders) agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of Notwithstanding the foregoing, upon the occurrence of any Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to Substitution Event, then, without any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith further action on the part of EK Holdings, any Indemnifying Shareholder, the Company, Parent or the Escrow Agent, EK Holdings shall automatically be removed as the Shareholder Representative hereunder 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 ▇▇▇▇ ▇▇▇▇▇▇ shall automatically be substituted as the Shareholder Representative (“Shareholder Representative Expenses”)hereunder. This indemnification EK Holdings shall survive termination of this Agreement. A decision, act, consent or instruction give Parent and ▇▇▇▇ ▇▇▇▇▇▇ prompt written notice of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.occurrence
Appears in 1 contract
Shareholder Representative. (a) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by without further act of any shareholder of Atlantis, the requisite vote of the Shareholders, each of the Shareholders Principal Shareholder shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for each such shareholder, as the Shareholder Representative for and on behalf of the Shareholders shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party from the Escrow Fund GoodNoise Stockholders of shares of Atlantis Common Stock in satisfaction of claims by any Indemnified PartyClaims, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the shareholders of Atlantis prior to the Effective Time (the "Atlantis Shareholders") from time to time upon not less than thirty (30) days prior written notice to ParentAtlantis; provided, however, that the Shareholder -------- ------- Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund Atlantis Shareholders agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest of the Escrow FundAtlantis Shareholders. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeAtlantis Shareholders.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and Representative shall be final, binding and conclusive upon each of the Atlantis Shareholders; , and the Escrow Agent and Parent Atlantis may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Goodnoise Corp)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersThe Shareholders hereby appoint John Gilmer Mebane, each of the Shareholders shall III as "SHAREHOLDER REPRESENTATIVE". The ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇entative will be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, as fact for and on behalf of each of the Shareholders and shall have full power and authority to represent all of the Shareholders and their successors with respect to all matters arising under this Agreement. All actions taken by the Shareholder Representative hereunder shall be binding upon all 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 and 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 Shareholders Shareholders, as fully as if he were acting on his own behalf, including, without limitation, consenting to, compromising or settling issues with respect to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any Escrow and all actions which it believes are reasonably necessary or appropriate such indemnity claims with Buyer under this Agreement, including without limitation giving taking any and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary specified in or appropriate contemplated by this Agreement, and engaging counsel, or accountants in the judgment of the Shareholder Representative for the accomplishment of connection with the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholdersmatters. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity on behalf of all Shareholders and such successors. The Person designated to serve as the Shareholder Representative may be changed by the Shareholders who are entitled to receive a majority of the Escrow when and if it becomes payable hereunder from time to time upon not less than ten days prior written notice to Buyer. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services but shall be entitled to be reimbursed by the Shareholders for reasonable expenses incurred in the performance of his duties hereunder, including expenses of legal counsel. All such expenses shall be payable from the Escrow, if sufficient.
(b) The Shareholder Representative shall not be liable to 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 Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him harmless from and against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or and administration of the Shareholder Representative’s his duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the .
(c) The Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about Buyer or the Company to anyone (“Shareholder Representative Expenses”except on a need to know basis to individuals who agree to treat such information confidentially). This indemnification shall survive termination of this Agreement. .
(d) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all the Shareholders and shall be final, binding and conclusive upon the Shareholders; each such Shareholder, and the Escrow Agent and Parent Buyer may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with every such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent Custodian, Buyer and Parent the Company are hereby relieved from any liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇▇ ▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for -------------------------- each Company Shareholder, as the Shareholder Representative for and on behalf of shareholders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the shareholders of the Company from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, Shareholders (including each of the Shareholders shall be deemed to have agreed to appoint TCB Principal Shareholders) hereby appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as its agent and attorney-attorney- in-fact, as the Shareholder Representative (the "Shareholder Representative") -------------------------- for and on behalf of the Shareholders (and with regard to take all actions under this Agreement that are Claims made against the Shareholders directly, for and on behalf of the Shareholders and with regard to be taken by Claims made against the Shareholder Representative. The Shareholder Representative is authorized Principal Shareholders directly, for and empowered on behalf of the Principal Shareholders) to take any give and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Parent from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of either of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders or the Principal Shareholders, as the case may be, from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/32/3rds) interest of the Escrow Fund or, in the event there are no amounts remaining in the Escrow Fund, by the holders of two-thirds (2/3rds) of the Merger Shares agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund or, in the event there are no amounts remaining in the Escrow Fund, by the holders of two- thirds of the Merger Shares. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Sections 8.3 and 8.4 hereof, shall constitute a ------------ --- decision of all the Shareholders and shall be final, binding and conclusive upon the each of such Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of all the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lantronix Inc)
Shareholder Representative. (a) By virtue Subject to the terms and conditions of this Section 11.20, the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorney-in-fact, Company hereby designates PaxVax SH Representative LLC as the Shareholder Representative for to serve, and on behalf Parent and Merger Sub hereby acknowledge that the Shareholder Representative shall serve, as the sole representative of the Shareholders Shareholder, from and after the date hereof with respect to take all actions under the matters set forth in this Agreement that are and the Ancillary Agreements, such service to be taken by without compensation except for the Shareholder Representativereimbursement of out-of-pocket expenses specifically provided herein. The Shareholder Representative is authorized and empowered has accepted such designation as of the date hereof. Notwithstanding anything to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund contrary contained in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Escrow Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have no duties or responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties or Liabilities on behalf of the full power and authority to interpret all Shareholder shall otherwise exist against the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable has been irrevocably appointed as the agent, proxy and attorney-in-fact for the Shareholder for all purposes of this Agreement, has the full power and authority to act on the Shareholder’s behalf, including: (i) to take all actions or refrain from taking any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall indemnify actions which the Shareholder Representative considers necessary or desirable in connection with the defense, pursuit or settlement of any determinations relating to the payment of the Escrow Amount, and hold any claims in connection with this Agreement [***] or any Ancillary Agreement, including to ▇▇▇, defend, negotiate, settle and compromise any such claims made by or against, and other disputes with, Parent and Merger Sub pursuant to this Agreement or any of the Ancillary Agreements or transactions contemplated hereby or thereby, (ii) execute and deliver all amendments, waivers, Ancillary Agreements, certificates and documents that the Shareholder Representative harmless against deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement, (iii) receive funds, make payments of funds and give receipts of funds, (iv) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as it shall deem necessary or prudent in connection with the administration of the foregoing, (v) to take all actions *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. contemplated by this Section 11.20, (vi) to accept and receive notices to the Shareholder pursuant to this Agreement and (vi) to take or refrain from taking all other actions and exercise all other rights which the Shareholder Representative (in its sole discretion) considers necessary or appropriate in connection with this Agreement or the any lossother Ancillary Agreement (including entering into any amendments that the Shareholder Representative deems desirable without the consent of the Shareholder). The Shareholder, liability or expense incurred by accepting any portion of the Final Merger Consideration Amount and Additional Merger Consideration Amount, agreed that such agency and proxy are coupled with an interest, and are therefore irrevocable without gross negligence or bad faith on the part consent of the Shareholder Representative and arising out shall survive the death, incapacity, bankruptcy, dissolution or liquidation of the Shareholder. All decisions and acts by the Shareholder Representative are binding upon the Shareholder, and the Shareholder does not have the right to object, dissent, protest or otherwise contest the same. The terms and conditions of this Agreement are hereby made, and are hereby acknowledged to be, dependent on the determinations and actions that are contemplated or permitted to be made by the Shareholder Representative pursuant to such appointment, and all rights of the Shareholder shall be qualified by and dependent upon such determinations and actions, irrespective of whether the Shareholder Representative is acting as an agent or power of attorney of the Shareholder.
(c) The Shareholder Representative is authorized to act on behalf of the Shareholder, and the other parties hereto shall be entitled to rely on any and all action taken by the Shareholder Representative without any liability to, or obligation to inquire of, the Shareholder. Each of the other parties hereto is expressly authorized to rely on the genuineness of the signature of the Shareholder Representative and, upon receipt of any writing which reasonably appears to have been signed by the Shareholder Representative, the other parties hereto may act upon the same without any further duty of inquiry as to the genuineness of the writing. For clarity, following Parent’s payment in connection full to the Shareholder Representative of any amount required to be paid by Parent pursuant to this Agreement, Parent and its Non-Recourse Parties shall have no liability to the Shareholder or any of the Shareholder’s Non-Recourse Parties for such amount, including for the Shareholder Representative’s failure to distribute such amounts in any manner, including in accordance with separate agreements with the acceptance Shareholder and the Shareholder’s Non-Recourse Parties.
(d) Neither the Shareholder Representative, nor any agent employed by it, nor Parent or administration any of its Non-Recourse Parties, shall be liable to the Shareholder relating to the performance of the Shareholder Representative’s duties hereunderunder this Agreement for any errors in judgment, including negligence, oversight, breach of duty or otherwise by the reasonable fees Shareholder Representative, except the Shareholder Representative may be liable to the extent it is finally determined in a court of competent jurisdiction by clear and expenses of any legal counsel retained convincing evidence that the actions taken or not taken by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholdersconstituted willful misconduct. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, shall be indemnified and for anything done, omitted or suffered in good faith held harmless by the Shareholder against all Losses paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholder Representative in accordance with such adviceis made a party by reason of the fact that it was acting as the Shareholder Representative pursuant to this Agreement; provided, however, that the Shareholder Representative shall not be liable entitled to any Shareholderindemnification 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 willful misconduct. The Escrow Agent Shareholder Representative shall be protected in acting upon any notice, statement or certificate believed by him to be genuine and to have been furnished by the appropriate Person and in acting or refusing to act in good faith or any matter.
(e) At least three (3) Business Days prior to the Closing Date, the Shareholder Representative shall provide written notice to Parent are hereby relieved of the amount of cash (the “Shareholder Representative Expense Amount”) that will be retained from the Base Closing Cash Amount by the Shareholder Representative to pay (at the Shareholder Representative’s sole discretion), (i) any liability fees, costs and expenses incurred by the Shareholder Representative related to the negotiation, preparation, execution or delivery of this Agreement or any person of the other Ancillary Agreements, or the consummation of the transactions contemplated by this Agreement or any of the other Ancillary Agreements (to the extent not paid at the Closing) and (ii) any fees, expenses, costs, losses or damages it incurs in performing its duties and obligations under this Agreement, including fees, costs and expenses incurred pursuant to the procedures and provisions set forth in Section 2.9, and legal, accounting and consultant fees, expenses and costs for reviewing, analyzing, defending, pursuing, or prosecuting any decisionclaim or process arising under or pursuant to this Agreement or any of the other Ancillary Agreements, actincluding amounts owed to the Neutral Firm pursuant to Section Section 2.9.(c). The Shareholder Representative shall be permitted to pay amounts (including to itself) out of the Shareholder Representative Expense Account from time to time in order to perform its duties on behalf of the Shareholder hereunder. The Shareholder Representative may, consent in its sole and absolute discretion, invest and reinvest all or instruction any portion of the Shareholder Representative Expense Amount (including any interest earned thereon) in any manner the Shareholder Representative so determines or, at the sole option of the Shareholder Representative, it may elect not to invest or reinvest all or any portion of the Shareholder Representative Expense Amount (including any interest earned thereon). The Shareholder Representative will retain the amounts in the Shareholder Representative Expense Account for so long as it shall determine in its reasonable discretion. After the Shareholder Representative determines in its sole discretion that the Shareholder Representative no longer needs to retain any portion of the Shareholder Representative Amount, the balance of the Shareholder Representative Expense Amount, if any, will be distributed to the Shareholder.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersSellers hereby appoints ▇▇▇▇▇▇ ▇▇▇▇, each of the Shareholders shall be deemed to have agreed to appoint TCB as its M.D., his or her agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Sellers, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize the payment to any Indemnified Party of Losses from the Escrow Fund in satisfaction of claims by any Indemnified PartyFund, to object to such paymentsany claim set forth in an Officer’s Certificate, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Sellers from time to time upon not less than thirty (30) days prior written notice to Parentthe Shareholder Representative and the Buyer; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund 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. A Upon any change in the Shareholder Representative, such successor Shareholder Representative shall promptly provide the Buyer with a signature specimen. Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fundcapital stock of the Management Company issued and outstanding immediately prior to the Closing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeSellers.
(b) 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 Sellers shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of Representative pursuant to this Agreement, Agreement shall constitute a decision of the Shareholders Sellers and shall be final, binding and conclusive upon the Shareholders; Sellers, and the Escrow Agent and Parent Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersSellers. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such adviceIn addition, the Shareholder Representative shall not be liable may agree to any Shareholderthe amendment, extension or waiver of this Agreement pursuant to Section 9.3 hereof. The Escrow Agent and Parent Indemnified Parties are hereby relieved from any liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (NightHawk Radiology Holdings Inc)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the ShareholdersSecurity Holders, each of the Shareholders Security Holders shall be deemed to have agreed to appoint TCB the Principal Shareholders as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Security Holders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder Security Holder or by any such Shareholder Security Holder against any Indemnified Party or any dispute between any Indemnified Party and any such ShareholderSecurity Holder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the 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 Security Holders from time to time upon not less than thirty (30) calendar days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agentagent or such change. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority two-thirds in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeSecurity Holders.
(b) 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 Security Holders on whose behalf the Escrow Shares were contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive Following the termination of this Agreementthe Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Principal Shareholders and Principal Shareholder Affiliates, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Shareholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders Security Holders and shall be final, binding and conclusive upon the ShareholdersSecurity Holders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any ShareholderSecurity Holders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue Each Shareholder hereby designates and appoints (and each permitted Transferee of each such Shareholder is hereby deemed to have so designated and appointed) ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the “Shareholder Representative”), as its attorney-in-fact with full power of substitution, to serve as the representative of such Shareholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by such Shareholder (including the voting of the approval Subject Shares in accordance with Sections 1(a) and 1(b)), and hereby acknowledges that the Shareholder Representative shall be authorized to take any action so required, authorized or contemplated by this Agreement. Each such Shareholder further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest. Each such Shareholder hereby authorizes (and each such Permitted Transferee of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders such Shareholder shall be deemed to have agreed authorized) the other parties hereto to appoint TCB as its agent disregard any notices or other action taken by such Shareholder pursuant to this Agreement, except for notices and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Purchaser is and will be entitled to rely on any action so taken or any notice given by the Shareholder Representative and is and will be entitled and authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving give notices and communications, only to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated any notice contemplated by the terms of this AgreementAgreement to be given to any such Shareholder. Such agency may be changed from time A successor to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled chosen by the holders of a majority in interest of the Escrow Fund. No bond shall be required of Shareholders; provided, that notice thereof is given by the Shareholder Representative, and the new Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativePurchaser.
(b) The Notwithstanding the generality of Section 6(a), each Shareholder Representative shall not be liable for any act done or omitted hereunder hereby constitutes and appoints the Shareholder Representative, with full power of substitution, as Shareholder Representative while acting in good faith the proxy pursuant to the provisions of Section 705 of the California Corporations Code and in the exercise attorney of reasonable judgment. The Shareholders shall indemnify such Shareholder, and hereby authorizes and empowers the Shareholder Representative to represent, vote and hold the Shareholder Representative harmless against otherwise act (by voting at any loss, liability or expense incurred without gross negligence or bad faith on the part meeting of the Shareholder Representative and arising out of or in connection with the acceptance or administration shareholders of the Company, by written consent in lieu thereof or otherwise) with respect to the Subject Shares owned or held by such Shareholder Representative’s duties hereunderregarding the matters referred to in Sections 1(a), including 1(b) and 1(c) until the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement, to the same extent and with the same effect as such Shareholder might or could do under applicable law, rules and regulations. A decision, act, consent or instruction of The proxy granted pursuant to the Shareholder Representative, including immediately preceding sentence is coupled with an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders interest and shall be final, binding irrevocable. Each Shareholder hereby revokes any and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon all previous proxies or powers of attorney granted with respect to any such decision, act, consent or instruction of the Subject Shares owned or held by such Shareholder Representative as being regarding the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may matters referred to in all questions arising under this Agreement seek advice of legal counsel, Sections 1(a) and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative1(b).
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger Transaction and this Agreement by the requisite vote of Shareholders and the ShareholdersParticipating Optionholders, each of the Shareholders and Participating Optionholders shall be deemed to have agreed to irrevocably appoint TCB Summerhill Venture Partners Inc. and its agent as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders and Participating Optionholders, to take all actions under this Agreement that are receive and distribute payments, to be taken by give and receive notices and communications, to enter into any agreement for and on behalf of the Shareholder Representative. The Shareholder Representative is authorized Shareholders and empowered to take any and all actions which it believes are reasonably necessary or appropriate Participating Optionholders contemplated under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Parent Indemnified Party from the Special Escrow Fund or the Escrow Fund in satisfaction of claims by any Parent Indemnified Party, to object to such payments, to make any claims for indemnification for Losses on behalf of any Shareholder or Participating Optionholder, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Shareholder or Participating Optionholder, by any such Shareholder or Participating Optionholder against any Parent Indemnified Party Party, or by any Shareholder or Participating Optionholder against Parent, or any dispute between any Parent Indemnified Party and any such ShareholderShareholder or Participating Optionholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders or Participating Optionholders from time to time upon not less than thirty (30) 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of Shareholders and Participating Optionholders who together hold a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders and Participating Optionholders and shall be final, binding and conclusive upon the Shareholders; Shareholders and the Escrow Agent Participating Optionholders, and Parent and Sub may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersShareholders and Participating Optionholders. The Shareholder Representative may in all questions arising under this Agreement seek advice Each of legal counsel, Parent and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are Sub 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 the Shareholder Representative.
(c) The Shareholder Representative may rely and act upon any statement, report or opinion prepared by or any advice received from the auditors, counsel or other professional advisors of the Shareholder Representative or the Company. Absent fraud, gross negligence or wilful misconduct, the Shareholder Representative shall not be responsible or held liable for any loss or damage resulting from so relying or from acting in accordance with this Agreement as the Shareholder Representative. Each Shareholder and Participating Optionholder agrees (i) to jointly and severally indemnify and hold harmless the Shareholder Representative and its officers, directors and security holders from and against any and all losses, claims, damages, costs, expenses (including, without limitation, legal fees and expenses on a full indemnity basis) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Shareholder Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from its acting as Shareholder Representative hereunder and (ii) to reimburse the Shareholder Representative and its officers, directors and security holders upon demand for all legal or other expenses, if any, incurred in connection with its acting as Shareholder Representative, other than in the case of fraud, gross negligence or wilful misconduct, provided that the Shareholders Representative has acted in compliance with this Agreement.
(d) Each Shareholder and Participating Optionholder hereby unconditionally and irrevocably directs the Parent to deposit its Pro Rata Portion, as indicated on the Spreadsheet, of the Expense Account in a trust account with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation to be held in trust for the benefit of the Shareholders and the Participating Optionholders. The Expense Amount shall be used by the Shareholder Representative in its discretion to fund expenses incurred by Shareholder Representative on behalf of the Shareholders and Participating Optionholders in accordance with the terms of this Agreement and the Escrow Agreement.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB The Shareholder Representative is hereby appointed as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of each holder of Company Capital Stock, Company Options and Company Warrants (collectively, the Shareholders “Holders”), to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Purchaser from the Escrow Fund in satisfaction of claims any Loss (as herein defined) suffered or incurred by any a Purchaser Indemnified PartyParty (as herein defined) pursuant to Section 9.02, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, 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 A decision, act or consent of, or instruction from the Shareholder Representative shall constitute a decision of the Holders, and shall be final, binding and conclusive upon the Holders; and Purchaser and the Escrow Agent may rely upon any such decision, act or consent of, or instruction from, the Shareholder Representative as being the decision, act or consent of, or instruction from, the Holders. The Escrow Agent, Purchaser and the Surviving Corporation are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act or consent of, or instruction from, the Shareholder Representative. The Shareholder Representative may be changed by the Holders from time to time upon not less than thirty ten (3010) days days’ prior written notice to Parentthe Escrow Agent and Purchaser; provided, however, provided that the a Shareholder Representative may not be removed unless holders Holders of a two-thirds (2/3) majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Shareholder Representative while acting in good absent bad faith and in or gross negligence. In all questions arising hereunder or under the exercise of reasonable judgment. The Shareholders shall indemnify Escrow Agreement, the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith may rely on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and will not be liable to the Holders or any other person or party for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with based on such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.Holders by
Appears in 1 contract
Sources: Agreement and Plan of Merger (Medidata Solutions, Inc.)
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for -------------------------- each Company Shareholder, as the Shareholder Representative for and on behalf of the Shareholders Company Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the shareholders of the Company from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each Each of the Shareholders shall be deemed to have agreed to appoint TCB as hereby appoints Alai▇ ▇▇▇▇▇▇▇, ▇▇ting on behalf of Sudinnova, its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party Purchaser of shares of Purchaser Common Stock from the Escrow Fund in satisfaction of claims by any Indemnified PartyPurchaser, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time -42- 48 upon not less than thirty (30) days prior written notice to ParentPurchaser; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 was contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representative. After all claims for Losses by Purchaser set forth in Officer's Certificates delivered to the Escrow Agent and the Shareholder Representative Expenses”). This indemnification shall survive termination has been satisfied, or reserved against, the Shareholder Representative, with the consent of this Agreement. the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Shareholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement 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 the Escrow Agent and Parent Purchaser may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent Purchaser are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of Based on the approval and appointment set forth in the Written Consents, without any further act of the Merger any Shareholder being necessary, ▇▇▇▇ ▇▇▇ hereby accepts its appointment and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed agrees to have agreed to appoint TCB as its agent and attorney-in-fact, act as the Shareholder Representative for the Indemnitors for purposes of all matters relating to Article IX hereof and the Escrow Agreement, including without limitation, the power to execute and deliver the Escrow Agreement on behalf of the Shareholders. The Shareholders to take shall be bound by all actions under this Agreement that are to be taken by the Shareholder Representative on all matters relating to Article IX hereof and the Escrow Agreement, and Parent shall be entitled to deal exclusively with the Shareholder Representative on all such matters and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder or Indemnitor by the Shareholder Representative with respect thereto, and on any other action taken or purported to be taken on behalf of any Shareholder or Indemnitor by the Shareholder Representative with respect thereto, as fully binding upon such Shareholder or Indemnitor. If a majority of the Principal Stockholders shall determine to remove the Shareholders’ Representative or the Shareholders’ Representative shall resign, die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Shareholders and Indemnitors, then the Shareholders shall, within ten days after such determination to remove, death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Shareholder Representative” in accordance with this Section 10.2. If for any reason there is no Shareholder Representative at any time, all references herein to the Shareholder Representative shall be deemed to refer to the Shareholders. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving notices and communications, to authorize payment to any Indemnified Party from shall be reimbursed out of the Escrow Fund Escrowed Funds for its reasonable out-of-pocket expenses incurred in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply connection with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of serving as the Shareholder Representative for under this Agreement and the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Escrow Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, The Shareholder Representative shall at all times act in his capacity as Shareholder Representative in a manner that the Shareholder Representative may not believes to be removed unless holders of a two-thirds (2/3) in the best interest of the Escrow Fund agree to such removal and to the identity of the substituted agentIndemnitors. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting except for gross negligence, bad faith or willful misconduct on the part of Shareholder Representative. The Shareholder Representative may consult with legal counsel, independent public accountants and other experts selected by it. 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 Escrow Agreement. As to any matters not expressly provided for in good faith and in this Agreement or the Escrow Agreement, the Shareholder Representative shall not exercise of reasonable judgmentany discretion or take any action. The Shareholders shall severally (but not jointly) indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunderhereunder and under the Escrow Agreement, including the reasonable fees and expenses of any legal counsel retained by Shareholder Representative. Notwithstanding the foregoing, in no event shall any Shareholder Representative (“Shareholder Representative Expenses”)be liable under this Section 10.2 for any amount in excess of any consideration actually received in the Merger. This indemnification Section 10.2 shall survive the termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of In the approval of event that the Merger and this Agreement is approved by the requisite vote Stockholders, and effective upon such approval without further act of the Shareholdersany Stockholder, each of the Shareholders Robert Sires shall be deemed to have agreed to appoint TCB appointed as its their true and lawful representat▇▇▇, ▇▇▇▇▇, agent and attorney-in-factfact (the "Shareholder Representative") for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, as the Shareholder Representative to act for and on behalf of the Shareholders Stockholders in connection with or relating to take all actions under this Agreement that are to be taken the Transaction Documents and the Merger and in accordance with the procedures approved by the Shareholder Representative. The Shareholder Representative is authorized Stockholders, including, without limitation, to give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Merger, to review and confirm the amount of the Final Net Working Capital, to receive and deliver amounts comprising the Closing Merger Consideration and the Post-Closing Merger Consideration, to authorize payment to any Indemnified Party delivery of cash from the Escrow Fund Amount in satisfaction of claims by any a Purchaser Indemnified PartyParty pursuant to Article 9 hereof, to object to such paymentsor accept any claims by a Purchaser Indemnified Party pursuant to Article 9 hereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, make any other claim by any payment to a Dispute Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating pursuant to this Agreement or the transactions contemplated herebyArticle 9, and to take all other actions that are either (i) necessary or appropriate in the judgment sole opinion of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed at any time and from time to time by the action of Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger, and shall become effective upon not less than thirty (30) days prior written notice to the Parent; provided. Except as provided in the foregoing sentence, however, in the event that for any reason the most recent Shareholder Representative may not shall no longer be removed unless holders of serving in such capacity, including, without limitation, as a two-thirds (2/3) interest result of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required death, resignation or incapacity of the Shareholder Representative, the outgoing Shareholder Representative shall appoint a successor Shareholder Representative, and if the outgoing Shareholder Representative fails or is unable to appoint a successor, then the Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger shall appoint such successor, such that at all times there will be a Shareholder Representative with the authority provided hereunder. Any change in the Shareholder Representative pursuant to the foregoing sentence shall not become effective upon delivery of written notice of such change to the Parent. The Shareholder Representative shall receive such compensation as shall be determined by the Board of Directors of the Company or by any compensation for its servicesone or more individuals authorized to determine the same. Notices or communications to or from the Shareholder Representative by or to any of the parties to the Transaction Documents shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeStockholders.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in the absence of gross negligence and willful misconduct on his or her part (which shall be deemed not to exist if the Shareholder Representative acted in good faith and in the exercise of reasonable judgmentfaith). The Shareholders Stockholders shall jointly and severally indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense incurred without gross negligence nature whatsoever (whether or bad faith on not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the part of foregoing) (collectively, "Losses") which may be sustained or suffered by the Shareholder Representative and arising out of or in connection with the acceptance administration of its duties hereunder, except where such Losses arise from or administration are the result of the Shareholder Representative’s duties hereunder's gross negligence or willful misconduct (which shall be deemed not to exist if the Shareholder Representative acted in good faith).
(c) Any decision, including the reasonable fees and expenses of any legal counsel retained act, consent or instruction taken or given by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification pursuant to this Agreement shall survive termination of this Agreement. A be and constitute a decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders all Stockholders and shall be final, binding and conclusive upon the Shareholders; each such Stockholder, and the Escrow Agent and the Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholderevery Stockholder. The Escrow Agent and the Parent are hereby relieved from any liability to any person Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative; provided that such acts are taken in good faith and absent gross negligence and willful misconduct on the part of the Escrow Agent and the Parent respectively.
Appears in 1 contract
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each Each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent hereby designates and attorney-in-fact, as appoints the Shareholder Representative for and on behalf of to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by the Shareholders to take all actions under this Agreement that are to be taken by (including, without limitation, the Shareholder Representative. The Shareholder Representative is authorized execution and empowered to take delivery of any waivers, consents, approvals, extensions, amendments and all actions which it believes are reasonably necessary or appropriate under this Agreementother agreements, including without limitation the giving and receiving notices and communicationsreceipt of notices, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction resolution of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party disputes and any such Shareholder, matters or proceedings referred to in each case relating to this Agreement or the transactions contemplated hereby, Article VIII hereof) and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, hereby acknowledges that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Shareholder. Each Shareholder Representative, further designates and appoints the Shareholder Representative shall not receive as its agent for service of process with respect to any compensation for its services. Notices disputes regarding or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions 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 to consent to hereby further designates Shareholder Representative as his or her purchaser representative in accordance with Regulation D under the Securities Act and any amendment hereof thereof in its capacity as corresponding provision of any state securities laws, for purposes of the transactions contemplated herein. Each Shareholder (including Shareholder Representative.
(b) The acknowledges that the foregoing appointments and designations shall be coupled with an interest and shall survive the death or incapacity of such Shareholder and that the Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting such action taken in good faith and in faith. Each Shareholder hereby authorizes the exercise of reasonable judgmentother parties hereto to disregard any notice delivered or other action taken by any Shareholder pursuant to this Agreement except for the Shareholder Representative. The Shareholders shall indemnify other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Shareholder Representative and hold are and will be entitled and authorized to give notices only to the Shareholder Representative harmless against for any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained notice contemplated by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not to be liable given to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") -------------------------- for each Company Shareholder, as the Shareholder Representative for and on behalf of shareholders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s =s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany Shareholder, each of the Shareholders ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for each Shareholder, as the Shareholder Representative for and on behalf of the Shareholders Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) majority in interest of in the Escrow Fund agree to such removal and to the identity of the substituted agent. A Any vacancy in the position of Shareholder Representative may be filled by approval of the holders of a majority in interest of in the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good without gross negligence, bad faith and in the exercise of reasonable judgmentwillful misconduct. 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 gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative Representative.
(“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, Representative shall constitute a decision of all Shareholders for whom a portion of the Shareholders Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and shall be final, binding and conclusive upon the each of such Shareholders; , and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, each and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with every such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.49
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Infoseek Corp /De/)
Shareholder Representative. (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB Magnum Communications Fund L.P. as its agent and attorney-in-fact, as the Shareholder Representative for and on behalf of the Shareholders (i) to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment to any Indemnified Party from directly against the Escrow Fund Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to negotiate, investigate and resolve all matters relating to ARTICLE VIII and ARTICLE IX hereof, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, (ii) to agree to, negotiate, execute and distribute the Earnout Warrants and deliver the Earnout Warrants to the Shareholders as provided therein, to fulfill all of its obligations thereunder and resolve all matters relating thereto, act on behalf of the Shareholders in connection therewith, and (iii) to take all other actions that are either (iA) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (iiB) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders Shareholders holding a majority of a two-thirds (2/3) interest of the Escrow Fund Company Shares agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) 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 shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”"SHAREHOLDER REPRESENTATIVE EXPENSES"). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are 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 the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Scansoft Inc)
Shareholder Representative. (a) By virtue Each of the approval of the Merger Company Shareholders hereby appoints ▇▇▇▇▇▇ ▇▇▇▇, his or her agents and this Agreement by the requisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint TCB as its agent and attorneyattorneys-in-fact, as the Shareholder Representative for and on behalf of the Shareholders Company Shareholders, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize delivery or payment to any Indemnified Party Parent of Escrow Shares or Escrow Cash from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to ParentParent and the Escrow Agent; provided, however, that the Shareholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Escrow Fund amounts agree to such removal and to the identity of the substituted agent. A Upon any change in the Shareholder Representative, such successor Shareholder Representative shall promptly provide the Escrow Agent with a signature specimen. Any vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. Fund amounts No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Company Shareholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as a Shareholder Representative while acting in good faith and in Representative, except for gross negligence or willful misconduct on the exercise part of reasonable judgmentsuch Shareholder Representative. The Shareholders on whose behalf the Escrow Shares and Escrow Cash were contributed to the Escrow Fund shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability liability, damage, penalty, claim, settlement, judgment, cost or expense incurred without gross negligence or bad faith 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 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representative. After all claims for Losses by Parent set forth in Claim Certificates delivered to the Escrow Agent and the Shareholder Representative Expenses”). This indemnification shall survive termination have been satisfied, or reserved against, the Shareholder Representative, with the consent of this Agreement. the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Shareholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of Representative pursuant to this Agreement, Agreement shall constitute a decision of the Company Shareholders and shall be final, binding and conclusive upon the Company Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Company Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such adviceIn addition, the Shareholder Representative shall not be liable may agree to any Shareholderthe amendment, extension or waiver of this Agreement pursuant to SECTIONS 8.3 and 8.4 hereof (provided that the express written agreement of each is required). The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Shareholder Representative shall be entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Company Shareholders. The Escrow Agent shall have no duty to verify the legitimacy of any claim made by the Shareholder Representative from the Escrow Fund in accordance with this Section 7.5 or as to whether such claim has been duly authorized in accordance herewith, and the Escrow Agent shall incur no liability to any Person in complying with any disbursement made to the Shareholder Representative upon his written request.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Shareholder Representative. (ai) By virtue of In the approval of event that the Merger is approved, effective upon such vote, and this Agreement by the requisite vote without further act of the Shareholdersany shareholder, each of the Shareholders ▇▇▇▇▇ ▇▇▇▇▇ shall be deemed to have agreed to appoint TCB appointed as its agent and attorney-in-factfact (the "Shareholder Representative") for -------------------------- each Company Shareholder, as the Shareholder Representative for and on behalf of shareholders of the Shareholders Company, to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized give and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, including without limitation giving and receiving receive notices and communications, to authorize payment delivery to any Indemnified Party Parent of payments from the Escrow Fund in satisfaction of claims by any Indemnified PartyParent, to object to such paymentsdeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Company Shareholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, provided that the Shareholder Representative may not be removed unless holders of a twomajority-thirds (2/3) in-interest of the Escrow Fund Company Shareholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for its servicesservices as such. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders. Without limiting the generality each of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder RepresentativeCompany Shareholders or their permitted transferees.
(bii) 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 Company Shareholders shall severally indemnify the Shareholder Representative and hold the Shareholder Representative him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Shareholders Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). This indemnification shall survive termination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract