Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted the “Shareholder Representative” under this Agreement, and as such shall serve as agent for and have all powers as attorney-in-fact of each Holder, for and on behalf of each Holder, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment of the Shareholder Representative in connection with the foregoing. Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter. Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders. Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.
Appears in 1 contract
Sources: Merger Agreement (Cnet Networks Inc)
Shareholder Representative. Section 10.8.1 ▇▇▇(a) Each of the 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 Indemnifying Securityholders to give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to 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. ▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted ▇, Chief Executive Officer of EK Holdings, shall be the “Shareholder Representative” under this Agreement, and as such shall serve as agent for and have all powers as attorney-in-fact of each Holder, for and on behalf of each Holder, only person authorized to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all foregoing actions necessary or appropriate for EK Holdings, in the judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign its capacity as Shareholder Representative for any reasonhereunder. Such agency may be changed by the Indemnifying Securityholders, as the Shareholder Representative shall notify Buyer of his or her intent case may be, from time to resign, and the Holders shall, by time upon not less than thirty (30) days prior written notice to BuyerParent; provided, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decisionhowever, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and may not disclose any nonpublic information from or about be removed unless holders of a two-thirds interest of the Surviving Corporation or Buyer to anyone Escrow Fund (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder 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. Notwithstanding the foregoing, upon the occurrence of any decisionShareholder Representative Substitution Event, actthen, consent without any further action on the part of EK Holdings, any Indemnifying Shareholder, the Company, Parent or instruction of the Escrow Agent, EK Holdings shall automatically be removed as the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative hereunder and ▇▇▇▇ ▇▇▇▇▇▇ shall not automatically be liable for any act done or omitted hereunder substituted as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage hereunder. EK Holdings shall give Parent and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required ▇▇▇▇ ▇▇▇▇▇▇ prompt written notice of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.occurrence
Appears in 1 contract
Shareholder Representative. Section 10.8.1 ▇▇(a) (x) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed as its agent and constituted the “Shareholder Representative” under this Agreement, and as such shall serve as agent for and have all powers as attorney-in-fact fact, and (y) by virtue of the return of the Option Waiver and receipt of consideration in connection with their Company In the Money Options, each HolderOptionholder shall be deemed to have agreed to appoint ▇▇▇▇▇▇ ▇▇▇▇▇ as its agent and attorney-in-fact, in each case as the Shareholder Representative for and on behalf of each Holderthe Shareholders and Optionholders to take all actions under this Agreement that are to be taken by the Shareholder Representative, including to amend this Agreement, to take the following actions in connection with the negotiationwaive any provision of this Agreement, settlement and compromise of indemnification claims to negotiate payments due pursuant to this Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: VI, to give and receive notices and communications, to authorize payment to any Indemnified Party, including reductions in the Contingent Consideration pursuant to Section 6.3, in satisfaction of communications; claims by any Indemnified Party, to object to such payments, to agree to, negotiate or negotiate, enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any disputes involving other claim by any claims made Indemnified Party against any Shareholder or Optionholder or by Buyer any such Shareholder or the Holders under this Agreement; Optionholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder or Optionholder, in each case relating to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative in connection with for the foregoing.
Section 10.8.2 If accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders and Optionholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Shareholder Representative elects may not be removed unless Shareholders and Optionholders holding an amount equal to resign as at least two-thirds in interest of the Contingent Consideration 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 Shareholders and Optionholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration. In the event a vacancy in the position of Shareholder Representative exists for any reasonfifteen (15) or more days, Parent shall have the right to petition a court of competent jurisdiction to appoint a replacement Shareholder Representative. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall notify Buyer not receive any compensation for his services; provided, however, that the Shareholder Representative shall be entitled to reimbursement of his or her intent to resign, and expenses from the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice Fund. Notices or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from the Shareholders and Optionholders.
(b) The Shareholder Representative represents and warrants to Parent, the Shareholders and the Optionholders that he has the irrevocable right, power and authority (i) to enter into and perform this Agreement and to bind each of the HoldersShareholders and Optionholders to its terms, (ii) to give and receive directions and notices hereunder and (iii) to make all determinations that may be required or that he deems appropriate under this Agreement.
(c) Until notified in writing by the Shareholder Representative that he has resigned, or that he has been removed by Shareholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration, Parent may rely conclusively and act upon the directions, instructions and notices of the Shareholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by Shareholders and Optionholders holding an amount equal to at least two-thirds in interest of the Contingent Consideration. 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 and Optionholders until a Shareholder Representative is appointed pursuant to Section 10.8.4 6.5(a).
(d) The Company, the Shareholders and the Optionholders each hereby authorize the Shareholder Representative to:
(i) Receive all notices or documents given or to be given to the Shareholders and Optionholders pursuant hereto or in connection herewith or therewith and to receive and accept services of legal process in connection with any suit or proceeding arising under this Agreement;
(ii) Engage counsel, and such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Shareholder Representative may in his sole discretion deem appropriate; and
(iii) Take such action as the Shareholder Representative may in his sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as the Shareholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in his capacity as Shareholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to this Article VI and any waiver of any obligation of Parent or the Surviving Corporation.
(iv) Administer the Shareholder Representative Fund and pay any and all third-party expenses of the Shareholder Representative incurred in furtherance of his duties hereunder.
(e) 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 and Optionholders 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. A decision, act, consent or instruction of the Shareholder Representative pursuant Representative, including but not limited to an amendment, extension or waiver of this Section 10.8 Agreement, shall constitute a decision, act, consent or instruction of each and all decision of the Holders, Shareholders and Optionholders and shall be final, binding and conclusive upon each the Shareholders and all of the Holders, Optionholders; and Buyer shall be entitled to Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each the Shareholders and all of the Holders, and Buyer shall be Optionholders. Parent is hereby relieved from any liability to any Person person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant Representative.
(f) On the Closing Date, Parent shall deposit with a third party bank to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of appointed by the Shareholder Representative, the Shareholder Representative Fund, to provide for the reimbursement of expenses incurred by the Shareholder Representative in connection with the performance of his duties under this Agreement. The deposit of the Shareholder Representative Fund by Parent to such bank shall completely discharge Parent’s obligations with respect to such amount, and in no event shall Parent have any responsibility or liability whatsoever for the manner in which the Shareholder Representative administers the Shareholder Representative Fund, or for causing or ensuring that all or any portion of the Shareholder Representative Fund is ultimately paid or distributed to the Shareholders and Optionholders.
(g) Upon the later of the Contingent Consideration Payment Date or the final resolution of any Objection Notice submitted with respect to a claim made in an Officer’s Certificate prior to the Contingent Consideration Payment Date, the Shareholder Representative shall receive no compensation distribute any funds remaining in the Shareholder Representative Fund to the Shareholders and Optionholders on a pro rata basis (based on the amount the Merger Consideration to which each Shareholder and Optionholder is otherwise entitled pursuant to Section 1.6). Any amounts due to Optionholders who are employees of the Surviving Corporation on the Contingent Consideration Payment Date shall be paid by the Shareholder Representative to the Surviving Corporation for services as suchpayment to the Optionholders. Upon completion of the distribution of the Shareholder Representative Fund, the Shareholder Representative’s duties and authority hereunder shall cease.
Appears in 1 contract
Shareholder Representative. Section 10.8.1 ▇(a) Each of the Shareholders (including each of the Principal Shareholders) hereby appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby appointed as its agent and constituted attorney- in-fact, as the “Shareholder Representative (the "Shareholder Representative” under this Agreement, and as such shall serve as agent ") -------------------------- for and have all powers as attorney-in-fact on behalf of each Holderthe Shareholders (and with regard to Claims made against the Shareholders directly, for and on behalf of each Holderthe Shareholders and with regard to Claims made against the Principal Shareholders directly, to take the following actions in connection with the negotiation, settlement for and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release on behalf of the Holdback Amount in connection therewith: Principal Shareholders) to give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of communications; claims by Parent, to object to such payments, to agree to, negotiate or negotiate, enter into settlements and compromises of, and institute litigation demand arbitration and comply with orders of courts and awards of arbitrators with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receiptssuch claims, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all other actions that are either (i) necessary or appropriate in the judgment of either of the Shareholder Representative in connection with for the foregoing.
Section 10.8.2 If 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 elects may not be removed unless holders of a two-thirds (2/3rds) 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 resign as such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative for any reasonmay 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 notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice not receive any compensation for its services. Notices or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the HoldersShareholders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. 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 any act done or omitted pursuant in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Amount was contributed to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, Escrow Fund shall indemnify and hold harmless the Shareholder Representative with respect to and hold the Shareholder Representative harmless against any claim, loss, damage liability or expense incurred without negligence or bad faith on the part of the Shareholder Representative and liability against such arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties hereunder, including without limitation the reasonable attorneys’ fees and costs, arising from expenses of any legal counsel retained by the Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Sections 8.3 and 8.4 hereof, shall constitute a ------------ --- decision of all the Shareholders and shall be final, binding and conclusive upon 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 pursuant as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to this Section 10.8any person for any acts done by them in accordance with such decision, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence act, consent or willful misconduct. No bond shall be required instruction of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lantronix Inc)
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed (a) By virtue of the approval of the Merger and constituted this Agreement by the “Shareholder Representative” under this Agreementrequisite vote of the Shareholders, each of the Shareholders shall be deemed to have agreed to appoint Magnum Communications Fund L.P. as its agent and as such shall serve as agent for and have all powers as attorney-in-fact of each Holderfact, as the Shareholder Representative for and on behalf of each Holder, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: Shareholders (i) to give and receive notices and communications, to authorize payment to any Indemnified Party directly against the Shareholders in satisfaction of communications; claims by any Indemnified Party, to object to such payments, to agree to, negotiate or negotiate, enter into settlements and compromises of, and institute litigation 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 disputes involving other claim by any claims made Indemnified Party against any Shareholder or by Buyer any such Shareholder against any Indemnified Party or the Holders under this Agreement; any dispute between any Indemnified Party and any such Shareholder, in each case relating to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; 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 (A) necessary or appropriate in the judgment of the Shareholder Representative in connection with for the foregoing.
Section 10.8.2 If accomplishment of the foregoing or (B) 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 elects may not be removed unless Shareholders holding a majority of Company Shares agree to resign as such removal and to the identity of the substituted agent. No bond shall be required of the Shareholder Representative for any reasonRepresentative, and the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice not receive any compensation for its services. Notices or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each the 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 Holders.
Section 10.8.4 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"). A decision, act, consent or instruction of the Shareholder Representative pursuant Representative, including but not limited to an amendment, extension or waiver of this Section 10.8 Agreement, shall constitute a decision, act, consent or instruction of each and all decision of the Holders, Shareholders and shall be final, binding and conclusive upon each the Shareholders; and all of the Holders, and Buyer shall be entitled to Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be Shareholders. Parent is hereby relieved from any liability to any Person person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.
Appears in 1 contract
Sources: Merger Agreement (Scansoft Inc)
Shareholder Representative. Section 10.8.1 (1) By approving this Merger Agreement and accepting the Merger Consideration, each of the Shareholders hereby irrevocably makes, constitutes, and appoints ▇▇▇ ▇. ▇▇▇▇▇▇ as the representative, agent and true and lawful attorney in fact of and for each of the Shareholders in connection with this Agreement (the "Shareholder Representative"). Each of the Shareholders hereby authorizes and empowers the Shareholder Representative to make or give any approval, waiver, request, consent, instruction or other communication on behalf of each of the Shareholders as each such Shareholder could do for himself, itself or herself, including with respect to the amendment of any provision of this Agreement. Each of the Shareholders further authorizes and empowers the Shareholder Representative to (i) receive all demands, notices or other communications directed to such Shareholder under this Agreement and to take any action (or to determine to refrain from taking any action) with respect thereto as he may deem appropriate as effectively as such Shareholder could act for himself, itself or herself (including, without limitation, the settlement or compromise of any dispute or controversy) and (ii) execute and deliver all instruments and documents of every kind incident to the foregoing with the same effect as if such Shareholder had executed and delivered such instruments and documents personally. Accordingly, any demands, notices or other communications directed to the Shareholders hereunder shall be deemed effective if given to the Shareholder Representative. Upon the death, resignation or incapacity of the Shareholder Representative, or at any other time, a successor may be appointed by the vote of the holders of a majority of the Shares outstanding immediately prior to the Effective Time, and such successor shall agree in writing to accept such appointment in accordance with the terms hereof. Notice of the selection of a successor Shareholder Representative appointed in the manner permitted in this Section 14.11 shall be provided to ▇▇▇▇ and Merger Corp. promptly.
(2) Without limiting the generality of the foregoing paragraph (1), if ▇▇▇▇▇▇ is hereby appointed , Merger Corp. or any of the other Persons specified in Section 11.1 asserts a claim for indemnification based upon the provisions of Section 11, the notice requirements of Sections 11.3 and constituted 14.8 shall be satisfied by delivery of any required notice to the “Shareholder Representative” under this Agreement, and Representative as such shall serve as agent for and have all powers as attorney-in-fact representative of each Holder, for and on behalf of each Holderof the Shareholders, and the Shareholder Representative shall exercise all rights of the Shareholders, as indemnifying parties under Section 11, and shall cause all obligations of the Shareholders, as indemnifying parties under Section 11, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release be performed. Each of the Holdback Amount in connection therewith: Shareholders agrees to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made be bound by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment and failures to act of the Shareholder Representative in connection accordance with this Section 14.11. Notwithstanding the foregoing.
, it shall be the obligation of each Shareholder, and not of the Shareholder Representative, to indemnify ▇▇▇▇, Merger Corp. and the other Persons specified in Section 10.8.2 If 11.1 based upon the provisions of Section 11. By approving this Merger Agreement and by accepting the Merger Consideration, each Shareholder hereby agrees to indemnify and to save and hold harmless the Shareholder Representative elects to resign as Shareholder Representative for from any reason, liability incurred by the Shareholder Representative shall notify Buyer based upon or arising out of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, any act, consent whether of omission or instruction commission, of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decisionthe authority herein granted, actother than acts, consent whether of omission or instruction of each and all of the Holderscommission, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s constitute gross negligence or willful misconduct. No bond shall be required of misconduct in the Shareholder Representative, and exercise by the Shareholder Representative shall receive no compensation for services as suchof the authority herein granted.
Appears in 1 contract
Sources: Merger Agreement (Gray Communications Systems Inc /Ga/)
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted (a) By the “Shareholder Representative” under execution of this Agreement, each Shareholder hereby irrevocably constitutes and appoints Shareholder Representative as such shall serve as agent for Shareholder Representative, agent, proxy, and have all powers as attorney-in-fact for each of each Holderthe Shareholder Group Members for all purposes authorized under this Agreement, for including the full power and authority on behalf of the Shareholder Group Members (i) to disburse any funds received hereunder to the applicable Shareholder Group Members; (ii) to endorse and deliver any certificates or instruments representing the Shares and execute such further instruments of assignment as Buyer shall reasonably request; (iii) to execute and deliver on behalf of such Shareholder Group Member any amendment or waiver hereto; (iv) (A) to dispute or refrain from disputing, or to deliver instructions, on behalf of such Shareholder Group Member relative to any amounts to be received by such Shareholder Group Member under this Agreement or any other agreement contemplated hereby, any claim made by Buyer under this Agreement or any other agreement contemplated hereby, (B) to negotiate and compromise, on behalf of any Shareholder Group Member, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or any other agreement contemplated hereby, and (C) to execute, on behalf of each HolderShareholder Group Member, any settlement agreement, release or other document with respect to take such dispute or remedy; (v) to engage attorneys, accountants, agents or consultants on behalf of the following actions Shareholder Group Members in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement or any other agreement contemplated hereby and the release pay any fees related thereto; (vi) to take all other actions to be taken by or on behalf of the Holdback Amount such Shareholder Group Member in connection therewith: herewith; and (vii) to give do each and receive notices of communications; every act and exercise any and all rights which such Shareholder Group Member individually or collectively with the other Shareholder Group Members are permitted or required to agree to, negotiate do or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders exercise under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Escrow Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment any other document contemplated hereby. Each of the Shareholder Representative in connection Group Members agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the foregoing.
Section 10.8.2 If the consent of Shareholder Representative elects to resign and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any such Shareholder Group Member. If any Shareholder Group Member dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Shareholder Group Member being a “Former Shareholder”) and, as a result, the agency and power of attorney conferred by this Section 11.15 is revoked by operation of law, it shall not be a breach by such Former Shareholder under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Shareholder (each a “Successor Shareholder”) confirms the appointment of Shareholder Representative as agent and attorney-in-fact for any reason, the such Successor Shareholder. All decisions and actions by Shareholder Representative (to the extent authorized by this Agreement) shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent or instruction be binding upon all of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the HoldersGroup Members, and no Shareholder Group Member shall be finalhave the right to object, binding dissent, protest or otherwise contest the same.
(b) Each Shareholder Group Member agrees that Buyer and conclusive upon each and all of the Holders, and Buyer Company shall be entitled to rely upon on any decisionaction taken by Shareholder Representative, acton behalf of such Shareholder Group Member, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holderspursuant to Section 11.15(a) (an “Authorized Action”), and Buyer that each Authorized Action shall be relieved from any liability to any Person for any acts done by it in accordance with binding on each such decision, act, consent or instructionShareholder Group Member as fully as if such Shareholder Group Member had taken such Authorized Action. The (c) Shareholder Representative shall not have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance by reason of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on Agreement a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder fiduciary relationship in the event respect of any decisionShareholder Group Member, act, consent or instruction except in respect of the amounts received on behalf of such Shareholder Representative pursuant to this Section 10.8Group Member. The Shareholder Representative shall not be liable to any Shareholder Group Member for any act done action taken or omitted by it or any agent employed by it hereunder as or under any other document entered into in connection herewith, except that Shareholder Representative while acting shall not be relieved of any liability imposed by law for willful misconduct. Shareholder Representative shall not be liable to the Shareholder Group Members for any apportionment or distribution of payments made by Shareholder Representative in good faith, and if any act done such apportionment or omitted pursuant distribution is subsequently determined to have been made in error the advice sole recourse of counsel any Shareholder Group Member to whom payment was due, but not made, shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless to recover from the other Shareholder Representative with respect to Group Members any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required payment in excess of the Shareholder Representative, and the amount to which they are determined to have been entitled. Shareholder Representative shall receive no compensation not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither Shareholder Representative nor any agent employed by it shall incur any liability to any Shareholder Group Member by virtue of the failure or refusal of Shareholder Representative for services as suchany reason to consummate the transactions contemplated hereby or relating to the performance of its other duties hereunder, except for actions or omissions constituting actual and intentional fraud.
Appears in 1 contract
Shareholder Representative. (a) Each of the Shareholders hereby irrevocably (except as set forth in Section 10.8.1 ▇▇▇▇1.6(b)) authorizes and appoints P▇▇▇▇ ▇▇▇▇▇▇▇ is hereby and any replacement representative appointed and constituted pursuant to Section 1.6(b) (the “Shareholder Representative” under this Agreement”), with full power of substitution and resubstitution, as such shall serve as agent for Shareholder’s representative and have all powers as attorney-in-fact of each Holder, and agent to act for and on behalf of each Holder, such Shareholder with respect to take the following actions all matters arising in connection with this Agreement, including the negotiationpower and authority, settlement and compromise exercisable in the sole discretion of indemnification claims the Shareholder Representative, to (i) take any action contemplated to or that may be taken by the Shareholders under this Agreement, including pursuant to Article 10 VIII, or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement, including with respect to the final determination of payments to be made pursuant to Section 1.2.3 and any Indemnification Claim pursuant to Article VIII, or any other Operative Document; and (iii) make, execute, acknowledge and deliver any consents, releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other documents or instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement Agreement, including pursuant to Article VIII, or any other Operative Document.
(b) The Shareholder Representative may be removed by written agreement among Buyer and the release a majority in interest of the Holdback Amount Shareholders calculated with reference to each Shareholder’s Pro Rata Share. The Shareholder Representative may resign at any time upon giving 60 days’ prior written notice of such resignation to Buyer, Escrow Agent and each Shareholder, but shall exercise all the powers enumerated in connection therewith: Section 1.6(a) until the effective date of such resignation. In the event of such removal or resignation, or upon the death or disability of the Shareholder Representative, Buyer and a majority in interest of the Shareholders calculated with reference to give each Shareholder’s Pro Rata Share shall agree within 30 days after such removal, resignation, death or disability upon a replacement Shareholder Representative. Any Survival Period set forth in Section 8.1 and receive notices of communications; any period in which any Buyer Indemnified Party is required to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts provide notice to the Shareholder Representative with respect to any disputes involving any claims made by Buyer Indemnification Claim or the Holders under this Agreement; action to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment of the Shareholder Representative be taken in connection with this Agreement shall be deemed to be extended by the foregoingnumber of days that elapses between the Shareholder Representative’s resignation, death or disability and the appointment of a replacement Shareholder Representative.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5c) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable to any Shareholder for any act done action taken or omitted by him hereunder as or under any other Operative Document or other document or instrument executed or delivered hereunder, or in connection therewith, except that the Shareholder Representative while acting shall not be relieved of any liability imposed by Law for willful misconduct or gross negligence. Each of the Shareholders acknowledges and agrees that, with respect to the Shareholders, the Shareholder Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Shareholder Representative deems appropriate in good faithsuch Shareholder Representative’s sole discretion, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each HolderShareholders, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative for all Losses incurred by the Shareholder Representative in connection with respect the performance of his duties hereunder or under any other Operative Document or in any way relating to him in his capacity as Shareholder Representative hereunder or under any claimother Operative Document, lossexcept to the extent that such Losses are the direct result of the Shareholder Representative’s willful misconduct or gross negligence.
(d) Each Shareholder agrees that Buyer shall be entitled to rely on any action taken by the Shareholder Representative on behalf of the Shareholders pursuant to Section 1.6(a) above (each, damage an “Authorized Action”), and liability against that each Authorized Action shall be binding on each such Shareholder Representative, including without limitation reasonable attorneys’ fees as fully as if such Person had taken such Authorized Action. Each Shareholder acknowledges and costs, arising from agrees that any decision, act, consent or instruction payment made by Buyer on behalf of such Shareholder to the Shareholder Representative pursuant to this Section 10.8, unless Agreement shall constitute full and complete payment to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconductand Buyer shall have no further liability therefor. No bond Shareholder shall be required bring any Claim against Buyer as a result of any actions or inactions of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.
Appears in 1 contract
Shareholder Representative. Section 10.8.1 (1) By approving this Merger Agreement and accepting the Merger Consideration, each of the Shareholders hereby irrevocably makes, constitutes, and appoints Ray M. Deaver as the representative, agent and true and lawful attorn▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and for each of the Shareholders in connection with this Agreement (the "Shareholder Representative"). Each of the Shareholders hereby authorizes and empowers the Shareholder Representative to make or give any approval, waiver, request, consent, instruction or other communication on behalf of each of the Shareholders as each such Shareholder could do for himself, itself or herself, including with respect to the amendment of any provision of this Agreement. Each of the Shareholders further authorizes and empowers the Shareholder Representative to (i) receive all demands, notices or other communications directed to such Shareholder under this Agreement and to take any action (or to determine to refrain from taking any action) with respect thereto as he may deem appropriate as effectively as such Shareholder could act for himself, itself or herself (including, without limitation, the settlement or compromise of any dispute or controversy) and (ii) execute and deliver all instruments and documents of every kind incident to the foregoing with the same effect as if such Shareholder had executed and delivered such instruments and documents personally. Accordingly, any demands, notices or other communications directed to the Shareholders hereunder shall be deemed effective if given to the Shareholder Representative. Upon the death, resignation or incapacity of the Shareholder Representative, or at any other time, a successor may be appointed by the vote of the holders of a majority of the Shares outstanding immediately prior to the Effective Time, and such successor shall agree in writing to accept such appointment in accordance with the terms hereof. Notice of the selection of a successor Shareholder Representative appointed in the manner permitted in this Section 14.11 shall be provided to Gray and Merger Corp. promptly.
(2) Witho▇▇ is hereby appointed ▇imiting the generality of the foregoing paragraph (1), if Gray, Merger Corp. or any of the other Persons specified in Section 1▇.▇ asserts a claim for indemnification based upon the provisions of Section 11, the notice requirements of Sections 11.3 and constituted 14.8 shall be satisfied by delivery of any required notice to the “Shareholder Representative” under this Agreement, and Representative as such shall serve as agent for and have all powers as attorney-in-fact representative of each Holder, for and on behalf of each Holder, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of the Shareholder RepresentativeShareholders, and the Shareholder Representative shall receive no compensation for services exercise all rights of the Shareholders, as such.indemnifying parties under Section 11, and shall cause all obligations of the Shareholders, as indemnifying parties under Section 11, to be performed. Each of the Shareholders agrees to be bound by all actions and failures to act of the Shareholder Representative in accordance with this Section 14.11. Notwithstanding the foregoing, it shall be the obligation of each Shareholder, and not of the Shareholder Representative, to indemnify Gray, Merger Corp. and the other Persons specified in Section 11.1 ba▇▇▇ upon the provisions of Section
Appears in 1 contract
Sources: Merger Agreement (Gray Communications Systems Inc /Ga/)
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed (a) By virtue of their approval of the Merger, each Securityholder designates and constituted appoints the “Shareholder Representative” under this Agreement, and Representative as such shall serve as Securityholder’s agent for and have all powers as attorney-in-fact of each Holder, with full power and authority to act for and on behalf of each Holder, to take the following actions in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: Securityholder to give and receive notices and communications, to accept service of communications; process on behalf of the Shareholders pursuant to Section 9.4(f) and Section 11.11, to authorize and agree to adjustments to the Merger Consideration under Sections 2.6 and 2.7 and other applicable provisions of this Agreement, to agree to, negotiate or negotiate, enter into settlements and compromises of, and institute litigation and comply with orders Judgments of courts or other Governmental Authorities and awards of arbitrators, with respect to any disputes involving to, any claims made by Buyer any Purchaser Indemnified Party against any Shareholder or the Holders under by any Shareholder against any Purchaser Indemnified Party, or any other dispute between any Purchaser Indemnified Party and any Securityholder, in each case relating to this Agreement; to sign receipts, consents Agreement or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative in connection with for the foregoing.
Section 10.8.2 If accomplishment of the Shareholder Representative elects to resign as Shareholder Representative for any reason, foregoing or (ii) specifically mandated by the Shareholder Representative shall notify Buyer terms of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice this Agreement. Notices or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the HoldersSecurityholders for all purposes under this Agreement.
(b) The Shareholder Representative may delegate its authority as Shareholder Representative to any one of the 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 10.8.4 11.2. In the event of the death or incapacity of the Shareholder Representative, 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” as used in this Agreement includes any successor Shareholder Representative.
(c) A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute constitutes a decision, act, consent or instruction decision of each all the Securityholders and all of the Holders, and shall be is final, binding and conclusive upon each and all of the HoldersSecurityholders, and Buyer shall be entitled to the Purchaser and 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 each and all of the Holders, and Buyer shall be Securityholders. The Purchaser is hereby relieved from any liability Liability to any Person for any acts done or omissions by it the Purchaser in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of 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 pursuant to this Section 10.8. as being genuine and correct and having been duly signed or sent by the Shareholder Representative.
(d) The Shareholder Representative shall not be liable will have no Liability to any Person for any act done or omitted hereunder under this Agreement as the Shareholder Representative while acting in good faithfaith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel shall will be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall The Securityholders will severally indemnify and hold harmless the Shareholder Representative with respect to from and against any claim, loss, damage and liability against 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, including without limitation reasonable attorneys’ on a pro rata basis in proportion to their interest in the Merger Consideration, the Shareholder Representative for professional fees and costsexpenses of any attorney, arising from any decision, act, consent accountant or instruction 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 such 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 10.811.1 is coupled with an interest, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the act of any Shareholder Representativeor by operation of Law, and whether upon the Shareholder Representative shall receive no compensation for services as suchdeath or incapacity of any Shareholder, or by the occurrence of any other event.
Appears in 1 contract
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is (a) By approving this Agreement and the transactions contemplated hereby appointed or by executing and constituted the “Shareholder Representative” under this Agreementdelivering a Letter of Transmittal, and as such shall serve as agent for by the consummation of the Merger or participating in the Merger and have all powers as attorney-in-fact of each Holderreceiving the benefits thereof, for and on behalf of each Holder, including the right to take receive the following actions consideration payable in connection with the negotiationMerger, settlement each Shareholder shall have irrevocably authorized and compromise appointed Shareholder Representative as of indemnification claims the Closing as such Person’s representative, agent and attorney in fact to act on behalf of such Person with respect to this Agreement, the Promissory Note and any other agreements ancillary hereto and to take any and all actions and make any decisions required or permitted to be taken by Shareholder Representative pursuant to Article 10 of this Agreement and Agreement, the release Promissory Note or such other ancillary agreements, including the exercise of the Holdback Amount in connection therewith: to power to:
(i) give and receive notices of and communications; to ;
(ii) agree to, negotiate or negotiate, enter into settlements and compromises of, and institute litigation comply with orders or otherwise handle any other matters described in Section 2.16;
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any disputes involving any claims for indemnification made by Buyer Parent pursuant to Article VI and Article VIII;
(iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Article VI and Article VIII;
(v) execute and deliver all documents necessary or desirable to carry out the Holders under intent of this Agreement; to sign receipts, consents Agreement and any Ancillary Document (including the Promissory Note);
(vi) make all elections or other documents to effect any of the transactions decisions contemplated by this Agreement and any Ancillary Document (including the Promissory Note);
(vii) engage, employ or the Ancillary Agreementsappoint any agents or representatives (including attorneys, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and to and
(viii) take all actions necessary or appropriate in the good faith judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reasonthe accomplishment of the foregoing. After the Closing, the Parent shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement (including Article VIII) (except with respect to any payments required to be made by the Shareholders directly) and shall notify Buyer be entitled to rely conclusively (without further evidence of his any kind whatsoever) on any document executed or her intent purported to resignbe executed on behalf of any Shareholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by Shareholder Representative, as being fully binding upon such Person. After the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice Closing notices or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent Shareholders. Any decision or instruction of the action by Shareholder Representative pursuant hereunder, including any agreement between Shareholder Representative and Parent relating to this Section 10.8 the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision, act, consent decision or instruction action of each and all of the Holders, 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 all severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or Shareholders, or by operation of Law, whether by death or other event.
(b) The Shareholder Representative may resign at any time. and the Shareholder Representative may be removed for any reason or 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 be removed without the Majority Holders having first appointed a new Shareholder Representative who shall assume such duties immediately upon the removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided, that until such notice is received, Parent, Merger Sub and Buyer the Surviving Corporation shall be entitled to rely upon any decision, act, consent or instruction on the decisions and actions of the prior Shareholder Representative as being the decision, act, consent or instruction described in Section 10.1(a) above.
(c) The Shareholder Representative will incur no liability of each and all of the Holders, and Buyer shall be relieved from any liability kind with respect to any Person for any acts done action or omission by it in accordance connection with such decisionits services pursuant to this Agreement and any agreements ancillary hereto, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of liability directly resulting from the Shareholder Representative pursuant to this Section 10.8Representative’s gross negligence or willful misconduct. The Shareholder Representative shall not be liable for any act done action or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted omission pursuant to the advice of counsel counsel. The Shareholders shall be conclusive evidence of such good faith. Each Holderindemnify, jointly and severally, with right of contribution among them, shall indemnify defend and hold harmless the Shareholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with respect the Shareholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to any claim, loss, damage and liability against such have been directly caused by the gross negligence or willful misconduct of the Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction the Shareholder Representative will reimburse the Shareholders the amount of such Shareholder indemnified Representative pursuant to this Section 10.8, unless and Loss to the extent that attributable to such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall If not paid directly to the Shareholder Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholder Representative from (i) the Expense Escrow Amount and (ii) any other funds that become payable to the Shareholders under this Agreement at such time as such amounts would otherwise be distributable to the Shareholders; provided, that while this section allows the Shareholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Shareholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholder Representative or the termination of this Agreement.
(d) The Expense Escrow Amount 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 agreements ancillary hereto. The Shareholders will not receive any interest or earnings on the Expense Escrow Amount and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative will not be liable for any loss of principal of the Expense Escrow Amount other than as a result of its gross negligence or willful misconduct. The Shareholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Shareholder Representative’s responsibilities, and the Shareholder Representative shall receive no compensation will deliver any remaining balance of the Expense Escrow Amount to the Escrow Agent for services further distribution to the Shareholders. For tax purposes, the Expense Escrow Amount will be treated as suchhaving been received and voluntarily set aside by the Shareholders at the time of Closing.
Appears in 1 contract
Shareholder Representative. Section 10.8.1 ▇▇▇Each Shareholder hereby irrevocably authorizes and appoints ▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted (the “"Shareholder Representative” under this Agreement"), and as such shall serve as agent for Shareholder's representative and have all powers as true and lawful attorney-in-fact of each Holderand agent to (a) act in such Shareholder's name, for place and stead as contemplated by Sections 7.6 and 8.1 and Articles VI and IX, (b) execute in the name and on behalf of each Holdersuch Shareholder any other agreement, certificate, instrument or document to take be delivered by the following actions Shareholders in connection with this Agreement, (c) authorize the negotiation, settlement and compromise release of indemnification claims delivery to the Parent of the Escrow Fund in amounts in satisfaction of Claims by the Parent Indemnified Parties pursuant to Article 10 of this Agreement IX (including by not objecting to such Claims), and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to (d) agree to, negotiate or object to, negotiate, resolve, enter into settlements and compromises of, and institute demand litigation of, and comply with orders of courts court with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 Claims. If the Shareholder Representative elects or any successor shall resign, die, or become unable to resign act as the Shareholder Representative for any reasonRepresentative, a replacement shall promptly be appointed by a writing signed by Shareholders who initially received a majority of the Aggregate Stock Consideration. Any such successor Shareholder Representative shall notify Buyer of his or her intent to resign, have the same powers and duties as if appointed as the Holders shall, by written notice to Buyer, appoint a successor original Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instructionhereunder. The Shareholder Representative shall have reasonable access to information about or the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative Shareholders shall promptly notify each Holder in the event of any decision, act, consent or instruction Parent of the appointment of a successor Shareholder Representative pursuant to this Section 10.8Representative. The Shareholders (other than the Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each HolderRepresentative) shall, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to for, and hold him harmless against, any claim, loss, damage and liability against such Shareholder Representativeliability, claim or expense, including without limitation reasonable attorneys’ fees and costsattorney's fees, arising from any decision, act, consent out of or instruction of such in connection with his duties as Shareholder Representative pursuant to under this Section 10.8Agreement, unless including the costs and to the extent that expenses of defending himself against any such loss, liability, claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as suchexpense in connection herewith.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corillian Corp)
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed 2.14.1. By approving the Merger at a special meeting of the Shareholders or by written consent of the Shareholders and/or by executing and constituted delivering the “Shareholder Representative” under this Support Agreement, and/or a Letter of Transmittal and accepting a portion of the Merger Consideration, each Company Equityholder shall have irrevocably authorized and appointed the Shareholder Representative and any replacement representative appointed pursuant to Section 2.14.2, with full power of substitution and resubstitution, as such shall serve as agent for his, her or its representative and have all powers as true and lawful attorney-in-fact of each Holderand agent to act in his, for her or its name, place and on behalf of each Holder, stead with respect to take the following actions all matters arising in connection with this Agreement, including, without limitation, the negotiationpower and authority, settlement and compromise of indemnification claims in his sole discretion, to:
(a) take any action contemplated to be taken by the Company Equityholders under this Agreement, including, without limitation, pursuant to Article 10 Section 9 of this Agreement Agreement;
(b) negotiate, determine, defend and the release of the Holdback Amount settle any disputes that may arise under or in connection therewith: to give and receive notices of communications; to agree towith this Agreement, negotiate or enter into settlements and compromises ofincluding, and institute litigation and comply with orders of courts without limitation, with respect to any disputes involving indemnification claim pursuant to Section 9; and
(c) make, execute, acknowledge and deliver any claims made by Buyer releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or the Holders under advisable in connection with this Agreement; , including, without limitation, pursuant to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment Section 9.
2.14.2. The appointment of the Shareholder Representative may not be revoked except in connection accordance with the foregoingthis Section 2.14.2.
Section 10.8.2 If the (a) The Shareholder Representative elects to may resign as Shareholder Representative for at any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within time on five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute Days' written notice to or from each of Parent and the Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instructionCompany Equityholders. The Shareholder Representative shall have reasonable access may be replaced from time to information about the Surviving Corporation and Buyer and the reasonable assistance time (including following resignation of the Surviving Corporation’s and Buyer’s officers and employees Shareholder Representative) by majority vote of those Company Equityholders entitled to receive any portion of the Merger Consideration based upon their relative interests in the Merger Consideration, upon notice given to Parent, which replacement shall be effective one (1) Business Day after receipt of such notice by Parent. If at the time of any such replacement the deadline hereunder for purposes of performing his duties and exercising his rights under this Article 10, provided that Parent to provide notice to the Shareholder Representative with respect to any indemnification claim or action to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone be extended such number of days that is fifteen (except on a need to know basis to individuals who agree to treat 15) days after Parent's receipt of such information confidentially)notice of replacement.
Section 10.8.5 The (b) In performing the functions specified in this Agreement, the Shareholder Representative shall promptly notify each Holder will not be liable to any Person including, without limitation, for any actions or omissions taken by the Shareholder Representative, in the event absence of any decision, act, consent fraud or instruction willful misconduct on the part of the Shareholder Representative pursuant to Representative. By approving the Merger or receiving a portion of the Merger Consideration, the Company Equityholders have accepted the limitations on the Shareholder Representative's liability set forth in this Section 10.82.14.2(b). The Shareholder Representative shall not be liable entitled to any fee, commission or other compensation for any act done or omitted hereunder the performance of services as Shareholder Representative while acting in good faithRepresentative, but any out-of-pocket costs and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless expenses incurred by the Shareholder Representative in connection with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such actions taken by the Shareholder Representative pursuant to the terms of this Section 10.8, unless Agreement (including the hiring of legal counsel and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond incurring of legal fees and costs) shall be required of the Shareholder Representative, and reimbursed to the Shareholder Representative shall receive no compensation for services as suchby the Company Equityholders on a pro rata basis.
Appears in 1 contract
Shareholder Representative. Section 10.8.1 ▇(a) Each Shareholder hereby irrevocably appoints and designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is as his or her representative and attorney-in-fact (the "REPRESENTATIVE).
(b) The Shareholders hereby appointed authorize the Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of any Shareholder to consummate the transactions contemplated hereby; (ii) to give and constituted the “Shareholder Representative” receive all notices required or permitted under this Agreement, and (iii) to take any and all additional action as such shall serve as agent for and have all powers as attorney-in-fact of each Holder, for and is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Shareholders will select another representative to fill each Holdersuch vacancy and such substituted representative will be irrevocably appointed and designated the Representative for all purposes of this Agreement.
(d) All decisions and actions by the Representative, including, without limitation, any agreement between the Representative and the Company relating to take the following waiver of any condition to the obligations of any Shareholder to consummate the transaction contemplated hereby, will be binding upon all of the Shareholders, and no Shareholder will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Shareholders agree that: The Company will be able to rely conclusively on the instructions and decisions of the Representative as to any actions required to be taken by the Representative hereunder, and no party hereunder will have any cause of action against the Company for any action taken by the Company in reliance upon the instructions or decisions of the Representative; all actions, decisions and instructions of the Representative will be conclusive and binding upon all of the Shareholders, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement, except for fraud or willful misconduct by the Representative; the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with the negotiation, settlement and compromise of indemnification claims pursuant to Article 10 of this Agreement and the release of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary AgreementsAgreement; and to take all actions necessary or appropriate in the judgment provisions of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of 1.7 will be binding upon the Holders.
Section 10.8.4 A decisionexecutors, actheirs, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction legal representatives and successors of each and all of the Holders, and shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, act, consent or instruction. The Shareholder Representative shall have reasonable access to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event of any decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faithShareholder, and any act done or omitted references in this Agreement to a Shareholder will mean and include the successors to the rights of the Shareholders hereunder, whether pursuant to testamentary disposition, the advice laws of counsel shall be conclusive evidence of such good faith. Each Holder, jointly descent and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claim, loss, damage and liability against such Shareholder Representative, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent distribution or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as suchotherwise.
Appears in 1 contract
Sources: Merger Agreement (Nicollet Process Engineering Inc)
Shareholder Representative. Section 10.8.1 ▇▇▇▇(a) By the execution and delivery of this Agreement, each of the Shareholder hereby irrevocably constitutes and appoints Ft. ▇▇▇▇ ▇▇(the “Shareholder Representative”), and Ft. ▇▇▇▇ is hereby appointed accepts such appointment, as the true and constituted the “Shareholder Representative” under this Agreement, lawful agent and as such shall serve as agent for and have all powers as attorney-in-fact of each Holderthe Shareholders with full power of substitution to act in the name, for place and stead of the Shareholders and to act on behalf of each Holderthe Shareholders in any litigation or arbitration involving this Agreement and the Transactions, to take do or refrain from doing all such further acts and things, and execute all such documents as the following actions Shareholder Representative shall deem necessary or appropriate in connection with the negotiationTransactions, settlement and including, without limitation, the power:
(i) to act for the Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise of indemnification claims pursuant to Article 10 of this Agreement and the release any indemnity claim on behalf of the Holdback Amount in connection therewith: to give and receive notices of communications; to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders under this Agreement; to sign receipts, consents or other documents to effect any of the transactions contemplated by this Agreement or the Ancillary Agreements; Shareholders and to take transact matters of litigation;
(ii) to execute and deliver all actions ancillary agreements, certificates and documents that the Shareholder Representative deems necessary or appropriate in connection with the judgment consummation of the Transactions;
(iii) to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price;
(iv) to do or refrain from doing any further act or deed on behalf of the Shareholders that the Shareholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as the Shareholders could do if personally present; and
(v) to receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholder Representative in connection shall be deemed coupled with an interest and shall be irrevocable, and shall be binding upon the foregoing.
Section 10.8.2 If successors, heirs, executors, administers and legal representatives of each Shareholder and shall not be affected by, and shall survive, the Shareholder Representative elects to resign as Shareholder Representative for death, incapacity, bankruptcy, dissolution or liquidation of any reasonShareholder. All decisions, actions, consents and instructions by the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the Holders.
Section 10.8.4 A decision, act, consent or instruction of the Shareholder Representative pursuant to this Section 10.8 shall constitute a decision, act, consent or instruction of each and be binding upon all of the HoldersShareholders, and no Shareholder shall be finalhave the right to object to, binding and conclusive upon each and all of the Holdersdissent from, and Buyer shall be entitled to rely upon protest or otherwise contest any decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each and all of the Holders, and Buyer shall be relieved from any liability to any Person for any acts done by it in accordance with such decision, actaction, consent or instruction. The Parent, the Buyer, each Company and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholder Representative in all matters referred to herein. All notices required to be made or delivered by the Parent, the Buyer or any Company to the Shareholders shall have reasonable access be made to information about the Surviving Corporation Shareholder Representative for the benefit of the Shareholders and shall discharge in full all notice requirements of the Parent, the Buyer and such Company to the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided Shareholders with respect thereto. The Shareholders hereby confirm all that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from do or about cause to be done by virtue of his appointment as the Surviving Corporation or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 Shareholder Representative of the Shareholders. The Shareholder Representative shall promptly notify each Holder act for the Shareholders on all of the matters set forth in this Agreement in the manner the Shareholder Representative believes to be in the best interest of the Shareholders and consistent with the obligations under this Agreement, but the Shareholder Representative shall not be responsible to the Shareholders for any loss or damages the Shareholders may suffer by the performance by the Shareholder Representative of its duties under this Agreement, other than loss or damage arising from willful violation of the Law by the Shareholder Representative or gross negligence in the performance by the Shareholder Representative of its duties under this Agreement.
(c) The Shareholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of Shareholders holding a majority of the Shares as of the Closing (the “Majority Shareholders”), with the prior consent of Buyer, not to be unreasonably withheld. In the event of any decisionthe death, actincapacity, resignation or removal of the Shareholder Representative, a new Shareholder Representative shall be appointed by the vote or written consent of the Majority Shareholders, with the prior consent of Buyer, not to be unreasonably withheld. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Buyer, such appointment to be effective upon the later of the date indicated in such consent or instruction the date such consent is received by Buyer; provided, that until such notice is received, Parent, Buyer, Ft. ▇▇▇▇ and TPS, as applicable, shall be entitled to rely on the decisions, actions, consents and instructions of the prior Shareholder Representative as described in Section 14.14(a).
(d) The Shareholder Representative shall be entitled to reimbursement from the Shareholder Representative Expense Fund and/or otherwise received by it in its capacity as the Shareholder Representative pursuant to or in connection with this Section 10.8. The Agreement, for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholder Representative in such capacity; provided, that, other than the payment contemplated under Section 3.5 hereof, neither Parent, Buyer nor the Companies shall not be liable for have any act done monetary obligation or omitted hereunder as Shareholder Representative while acting in good faith, and any act done or omitted pursuant liability to the advice of counsel shall be conclusive evidence of such good faith. Shareholder Representative.
(e) Each HolderShareholder, jointly and severallyseverally but not jointly, with right of contribution among them, shall agrees to indemnify and hold harmless the Shareholder Representative with respect to and his agents and other representatives from and against its Pro Rata Share of any claimlosses, lossliabilities, damage and liability against such Shareholder Representative, expenses (including without limitation reasonable attorneys’ fees fees), judgments, fines and costs, amounts incurred by such Persons arising from any decision, act, consent out of actions taken or instruction of such omitted to be taken in the Shareholder Representative’s capacity as the Shareholder Representative pursuant to this Section 10.8, unless and to (except for those arising out of the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required ), including the costs and expenses of the Shareholder Representative, investigation and the Shareholder Representative shall receive no compensation for services as suchdefense of claims.
Appears in 1 contract
Sources: Asset Purchase Agreement (Meta Financial Group Inc)
Shareholder Representative. Section 10.8.1 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is hereby appointed and constituted (a) In order to administer the “Shareholder Representative” under transactions contemplated by this Agreement, including, without limitation, the rights and indemnification obligations of the Shareholders under Sections 2.03 and 4.03, the Shareholders hereby designate and appoint the Major Shareholder as such shall serve as agent their representative for this Agreement and have all powers as attorney-in-fact of each Holder, and agent for and on behalf of each HolderShareholder (in such capacity, the "Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and their successors, with respect to all matters arising under this Agreement, including, without limitation, (i) to take the following actions all action necessary in connection with the negotiationindemnification obligations of the Shareholders under Section 4.03, including, the defense or settlement and compromise of indemnification any claims pursuant to Article 10 of this Agreement and the release making of the Holdback Amount in connection therewith: payments with respect thereto, (ii) to give and receive all notices of communications; required to agree to, negotiate or enter into settlements and compromises of, and institute litigation and comply with orders of courts with respect to any disputes involving any claims made by Buyer or the Holders be given under this Agreement; Agreement and (iii) to sign receipts, consents take any and all additional action as is contemplated to be taken by or other documents to effect any on behalf of the transactions contemplated Shareholders by this Agreement or the Ancillary Agreements; and to take all actions necessary or appropriate in the judgment of the Shareholder Representative in connection with the foregoing.
Section 10.8.2 If the Shareholder Representative elects to resign as Shareholder Representative for any reason, the Shareholder Representative shall notify Buyer of his or her intent to resign, and the Holders shall, by written notice to Buyer, appoint a successor Shareholder Representative within five (5) Business Days thereafter.
Section 10.8.3 Notice or communications to or from the Shareholder Representative pursuant to this Section 10.8 shall constitute notice to or from each of the HoldersAgreement.
Section 10.8.4 A decision, act, consent or instruction of (c) In the event that the Shareholder Representative pursuant dies, becomes unable to this Section 10.8 shall constitute a decisionperform his responsibilities as Shareholder Representative or resigns from such position, act, consent or instruction the Shareholders having an aggregate of each and all at least 50% of the Holders, ownership interest in the Company immediately prior to the Merger shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be final, binding and conclusive upon each and all of the Holders, and Buyer shall deemed to be entitled to rely upon any decision, act, consent or instruction of the Shareholder Representative as being for all purposes of this Agreement. Upon the decisionoccurrence of such event, act, consent or instruction of each the Shareholders shall provide written notice to the Buyer and all shall indicate the identity of the Holderssubstitute Shareholder Representative, who shall have agreed to the terms of this Section as if he were a party hereto.
(d) All decisions and actions by the Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Buyer relating to the indemnification obligations of the Shareholders under Section 4.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and Buyer no Shareholder shall be relieved from any liability have the right to any Person for any acts done by it in accordance with such decisionobject, actdissent, consent protest or instructionotherwise contest the same. The Shareholder Representative shall have reasonable access incur no liability to information about the Surviving Corporation and Buyer and the reasonable assistance of the Surviving Corporation’s and Buyer’s officers and employees for purposes of performing his duties and exercising his rights under this Article 10, provided that Shareholders with respect to any action taken or suffered by the Shareholder Representative shall treat confidentially in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and not disclose duly authorized, nor for any nonpublic information from other action or about inaction with respect to the Surviving Corporation indemnification obligations of the Shareholders under Section 4.03, including the defense or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Section 10.8.5 The Shareholder Representative shall promptly notify each Holder in the event settlement of any decisionclaims and the making of payments with respect thereto, act, consent or instruction of except to the extent resulting from the Shareholder Representative pursuant to this Section 10.8Representative's own willful misconduct or negligence. The Shareholder Representative shall may, in all questions arising under this Agreement, rely on the advice of counsel, and will not be liable to the Shareholders for any act done action done, omitted or omitted hereunder as Shareholder Representative while acting suffered in good faithfaith by the Shareholder Representative.
(e) The Buyer is hereby authorized to rely conclusively on the actions, instructions and any act done or omitted pursuant to the advice decisions of counsel shall be conclusive evidence of such good faith. Each Holder, jointly and severally, with right of contribution among them, shall indemnify and hold harmless the Shareholder Representative with respect to any claimthis Agreement, lossincluding, damage and liability against such Shareholder Representativewithout limitation, including without limitation reasonable attorneys’ fees and costs, arising from any decision, act, consent or instruction of such Shareholder Representative pursuant to this Section 10.8, unless and to the extent that such claim arises from such Shareholder Representative’s gross negligence or willful misconduct. No bond shall be required indemnification obligations of the Shareholder Representative, and the Shareholder Representative shall receive no compensation for services as such.Shareholders under Section
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