Shareholder Representative. (a) The approval by the Shareholders of the principal terms of the Merger shall automatically and without any further action on the part of any Shareholder constitute the appointment of the Shareholder Representative as the agent and attorney-in-fact for each of the Shareholders, to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days’ prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from 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 on whose behalf the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) The approval by the Shareholders By virtue of the principal terms approval of the Merger shall automatically and without any further action on this Agreement by the part of any Shareholder constitute the appointment requisite vote of the Shareholder Representative Shareholders, each of the Shareholders shall be deemed to have agreed to appoint Magnum Communications Fund L.P. as the its agent and attorney-in-fact fact, as the Shareholder Representative for each and on behalf of the Shareholders, Shareholders (i) to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of directly against the Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to negotiate, investigate and resolve all matters relating to ARTICLE VIII and ARTICLE IX hereof, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, (ii) to agree to, negotiate, execute and distribute the Earnout Warrants and deliver the Earnout Warrants to the Shareholders as provided therein, to fulfill all of its obligations thereunder and EXECUTION COPY resolve all matters relating thereto, act on behalf of the Shareholders in connection therewith, (iii) to prepare the Payment Schedules and to direct the payment of all Merger Consideration payable hereunder, and (iv) to take all other actions that are either (iA) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (iiB) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of Shareholders holding a majority in interest of the Escrow Fund Company Shares agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from 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 on whose behalf the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”"SHAREHOLDER REPRESENTATIVE EXPENSES"). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Parent are is hereby relieved from any liability to any Person person for any acts done by them it in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) The approval In the event that the Merger is approved by the Shareholders of the principal terms of the Merger shall automatically Stockholders, and effective upon such approval without any further action on the part act of any Shareholder constitute the appointment of the Shareholder Representative Stockholder, Robert Sires shall be appointed as the their true and lawful representat▇▇▇, ▇▇▇▇▇, agent and attorney-in-fact (the "Shareholder Representative") for each a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the ShareholdersStockholders in connection with or relating to the Transaction Documents and the Merger and in accordance with the procedures approved by the Stockholders, including, without limitation, to give and receive notices and communications, to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Merger, to review and confirm the amount of the Final Net Working Capital, to receive and deliver amounts comprising the Closing Merger Consideration and the Post-Closing Merger Consideration, to authorize payment to any Indemnified Party delivery of cash from the Escrow Fund or on behalf of the Shareholders Amount in satisfaction of claims by any a Purchaser Indemnified PartyParty pursuant to Article 9 hereof, to object to such payments, or accept any claims by a Purchaser Indemnified Party pursuant to bring any claim for indemnification on behalf of any Company Indemnified PartyArticle 9 hereof, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, make any other claim by any payment to a Dispute Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating pursuant to this Agreement or the transactions contemplated herebyArticle 9, and to take all other actions that are either (i) necessary or appropriate in the judgment sole opinion of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreementforegoing. Such agency may be changed by the Shareholders at any time and from time to time by the action of Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger, and shall become effective upon not less than thirty (30) days’ days prior written notice to the Parent; provided. Except as provided in the foregoing sentence, however, in the event that for any reason the most recent Shareholder Representative may not shall no longer be removed unless holders of serving in such capacity, including, without limitation, as a majority in interest result of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required death, resignation or incapacity of the Shareholder Representative, the outgoing Shareholder Representative shall appoint a successor Shareholder Representative, and if the outgoing Shareholder Representative fails or is unable to appoint a successor, then the Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger shall appoint such successor, such that at all times there will be a Shareholder Representative with the authority provided hereunder. Any change in the Shareholder Representative pursuant to the foregoing sentence shall not become effective upon delivery of written notice of such change to the Parent. The Shareholder Representative shall receive such compensation as shall be determined by the Board of Directors of the Company or by any compensation for his servicesone or more individuals authorized to determine the same. Notices or communications to or from the Shareholder Representative by or to any of the parties to the Transaction Documents shall constitute notice to or from each of the ShareholdersStockholders.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in the absence of gross negligence and willful misconduct on his or her part (which shall be deemed not to exist if the Shareholder Representative acted in good faith and in the exercise of reasonable judgmentfaith). The Shareholders on whose behalf the Escrow Fund was constituted Stockholders shall jointly and severally indemnify the Shareholder Representative and hold the Shareholder Representative harmless from and against any lossand all damages, liability actions, proceedings, demands, liabilities, losses, taxes, fines, penalties, costs, claims and expenses (including, without limitation, reasonable fees of counsel) of any kind or expense incurred without gross negligence nature whatsoever (whether or bad faith on not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the part of foregoing) (collectively, "Losses") which may be sustained or suffered by the Shareholder Representative and arising out of or in connection with the acceptance administration of its duties hereunder, except where such Losses arise from or administration are the result of the Shareholder Representative’s duties hereunder's gross negligence or willful misconduct (which shall be deemed not to exist if the Shareholder Representative acted in good faith).
(c) Any decision, including the reasonable fees and expenses of any legal counsel retained act, consent or instruction taken or given by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject pursuant to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and this Agreement shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of constitute a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders all Stockholders and shall be final, binding and conclusive upon the Shareholders; each such Stockholder, and the Escrow Agent and the Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholderseach and every Stockholder. The Escrow Agent and the Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative; provided that such acts are taken in good faith and absent gross negligence and willful misconduct on the part of the Escrow Agent and the Parent respectively.
Appears in 1 contract
Shareholder Representative. (a) The approval by the Shareholders By virtue of the principal terms approval of the Merger shall automatically and without any further action on this Agreement by the part of any Shareholder constitute the appointment Indemnifying Parties and/or entering into a Joinder Agreement, each of the Shareholder Representative Indemnifying Parties shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ as the its agent and attorney-in-fact as the Shareholder Representative for each and on behalf of the ShareholdersIndemnifying Parties to do and perform every act and thing reasonably necessary or desirable to be done in connections with the transactions contemplated by the Agreement, including without limitation:
(i) to give and receive notices and communicationscommunications under this Agreement, the Escrow Agreement and any Expense Escrow Agreement,
(ii) to determine the presence (or absence) of claims for payment pursuant to this Agreement, the Escrow Agreement and the Expense Escrow Agreement, and to authorize payment delivery to any the Indemnified Party Parties of cash and Escrow Shares from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any Indemnified PartyParties, and to make payments from the Shareholder Representative Fund;
(iii) to object to and defend against such paymentsclaims under this Agreement, to bring any claim for indemnification on behalf of any Company Indemnified Party, and to agree to, negotiate, enter into settlements settlements, adjustments and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims;
(iv) undertake legal action with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder Indemnifying Party or by any such Shareholder Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such ShareholderIndemnifying Party;
(v) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as the Shareholder Representative reasonably deems necessary or prudent in each case relating connection with the administration of his duties hereunder;
(vi) to this Agreement or authorize payment to any Indemnified Party from the transactions contemplated hereby, and Escrow Fund in satisfaction of claims by any Indemnified Party; and
(vii) to take all other actions that are either (iA) necessary deemed necessary, desirable or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (iiB) specifically mandated by the terms of this Agreement, including entering into the Escrow Agreement and the Expense Escrow Agreement; in each case relating to this Agreement, the Escrow Agreement and the Expense Escrow Agreement or the transactions contemplated hereby and thereby. Such The Shareholder Representative may resign as Shareholder Representative at any time with or without cause by giving 30 days prior written notice to the holders of interest of the Escrow Fund, Parent and Escrow Agent, such resignation to be effective no sooner than 30 days following the date such notice is given. In addition, such agency may be changed by the Shareholders Indemnifying Parties from time to time upon not less than thirty (30) days’ 30 days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed or any change to the agency made unless holders of a majority in two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agentagent or such change. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority two-thirds in interest of the Escrow Fund. In the event of the death, disability, resignation or removal of the Shareholder Representative, a successor or replacement Shareholder Representative shall be appointed no later than ten days following the last date of service of the Shareholder Representative that is being replaced. In the event that a successor Shareholder Representative is not appointed within such ten day period, the Parent, Escrow Agent and other parties to the Escrow Agreement and the Expense Escrow Agreement shall be entitled to rely on any action of the holders of a two-thirds interest of the Escrow Fund as the action of all of the holders in interest of the Escrow Fund, and such two-thirds interest of holders shall have all of the rights and duties of the Shareholder Representative hereunder and under the Escrow Agreement and Expense Escrow Agreement. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersIndemnifying Parties.
(b) A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of all the holders in interest of the Escrow Fund for whom a portion of the Escrow Amount or Expense Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and the Shareholder Representative Fund and shall be final, conclusive and binding upon each of such holders in interest of the Escrow Fund, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each every such Shareholder and Optionholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative
(c) The Shareholder Representative shall not, by reason of this Agreement, have a fiduciary relationship in respect of any Shareholder or Optionholder. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in or by any agent employed by him, except to the exercise extent that he is determined to have acted with gross negligence or willful misconduct. Any act done or omitted pursuant to the advice of reasonable judgmentcounsel shall be conclusive evidence that the Shareholder Representative did not act with gross negligence or willful misconduct. The Shareholders Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund was constituted shall shall, severally and not jointly (based on their Pro Rata Portion), indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability 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. In the event that the Shareholder Representative pays any amounts to any Person in connection with the transactions contemplated by this Agreement or the Escrow Agreement or the Expense Escrow Agreement, or incurs any liability for which he is entitled to indemnification by the Recipients under this Agreement, the Escrow Agreement or the Expense Escrow Agreement, or incurs any expenses (including attorneys or accounting fees) pursuant thereto or in connection therewith or pays any fees or taxes on behalf of the Shareholders or Optionholders thereunder (a “Shareholder Representative ExpensesExpense”), the Shareholder Representative shall be reimbursed for such Shareholder Representative Expenses (or may have funds to cover such expenses advanced) from the Shareholder Representative Fund Amount, which will be deposited by Parent into an account established under the Expense Escrow Agreement for use by the Shareholder Representative (the “Shareholder Representative Fund”).
(d) The Shareholder Representative Fund shall be available to compensate the Shareholder Representative for any Shareholder Representative Expenses and to pay any third party expenses incurred in connection with the defense, investigation or settlement of any claim from an Indemnified Party or any Third Party Claim under or related to this Agreement, as well as any costs or expenses associated with the Shareholder Representative Fund. Promptly after At any time and from time to time, the Termination Date, and subject Shareholder Representative may deliver to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for Agent written instructions instructing the indemnification obligations Escrow Agent to distribute all or a portion of the Expense Escrow Amount. In accordance with the terms set forth in the immediately preceding sentence Expense Escrow Agreement, the Escrow Agent shall disburse to the Shareholder Representative (or any Person who the Shareholder Representative designates as the recipient of such disbursement in his written instructions) funds from the Shareholder Representative Fund in an amount and in the manner set forth in such written instructions (up to the amount that is available in the Shareholder Representative Fund). For the avoidance of doubt, it is hereby acknowledged and agreed that: (A) the Escrow Agent shall be entitled to rely conclusively on the written instructions of the Shareholder Representative with respect to the Shareholder Representative Fund; (B) Parent’s consent shall not be required to release any funds from the Shareholder Representative Fund and Parent shall have no right or standing to object to the release or holding of the Shareholder Representative Fund; and (C) the Shareholder Representative shall have the sole authority to instruct the release or holding of the Shareholder Representative Fund. If the Shareholder Representative shall have delivered written instructions to the Escrow Agent instructing the Escrow Agent to release funds from the Shareholder Representative Fund to the Shareholder Representative and there are not sufficient funds in the Shareholder Representative Fund to cover such requested amount, the difference between the amount requested to be released by the Shareholder Representative from the Shareholder Representative Fund to the amount actually released to the Shareholder Representative upon delivery may be recovered by the Shareholder Representative from the Escrow Fund amounts otherwise distributable to Parent the Indemnifying Parties pursuant to the Escrow Agreement at the time of such distribution; provided, that while this section allows the Shareholder Representative to be paid from the Escrow Fund, this does not relieve the Shareholders and Optionholders from their obligation to promptly pay their pro rata portion of any such losses, liabilities or expenses (based on the Pro Rata Portion, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. Prior to any such distribution from the Escrow Fund, the Shareholder Representative shall deliver to the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of setting forth the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholderactually incurred. A written and signed decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the Shareholders; Indemnifying Parties, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability Liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Rambus Inc)
Shareholder Representative. (a) The approval by the Shareholders of the principal terms of the Merger shall automatically Each Company Shareholder does hereby make, constitute and without any further action on the part of any Shareholder constitute the appointment of appoint the Shareholder Representative as the its true and lawful agent and attorney-in-fact with full power of substitution, for each of the Shareholdersand in its name, stead and behalf, to: prepare, make, sign, initial, acknowledge and deliver from time to give time any and receive notices all documents, certificates and communicationsinstruments, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any Indemnified Partyincluding, to object to such paymentswithout limitation, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating amendments to this Agreement and any other agreements ancillary or related to this Agreement (collectively with this Agreement, the transactions contemplated hereby“Basic Documents”) and other agreements, consents, amendments, certificates, and to take all other actions that are either (i) stock powers, necessary or appropriate in connection with the judgment consummation of the transactions contemplated in the Basic Documents, and generally to perform all acts and to do all things necessary or appropriate in discharge of the power hereby conferred, including the making of affidavits and the acknowledging of documents, as if fully done by the undersigned, and the Shareholder Representative hereby is further authorized and empowered in the discharge of the power hereby conferred to sign any documents by means of either a manual, imprinted or other facsimile signature or by completing a printed form to which an imprinted or other facsimile signature is then affixed; to execute and deliver such other instruments, certificates and documents, make such filings, and take such other actions as are in the Shareholder Representative’s judgment necessary or appropriate to consummate the transactions contemplated in the Basic Documents; and to otherwise possess such other powers as are reasonably incidental to such powers. The Shareholder Representative (which term as used in this sentence and elsewhere in this Agreement shall include reference to its affiliates and its own and its affiliates’ officers, directors, employees and agents): (a) shall have no duties or responsibilities except those required to consummation of the transactions contemplated in the Basic Documents, and shall not by reason of any Basic Document be a trustee for any Company Shareholder; (b) shall not be responsible to the Company Shareholders for any recitals, statements, representations or warranties contained in any Basic Document, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or any other Basic Document, or for the accomplishment of the foregoing value, validity, effectiveness, genuineness, enforceability or (ii) specifically mandated by the terms sufficiency of this AgreementAgreement or any other Basic Document or any other document referred to or provided for in any Basic Document or for any failure by any Company Shareholder, the Company, Parent or any other person to perform any of its obligations under any Basic Document; (c) shall not be required to initiate or conduct any litigation or collection proceedings under any Basic Document; and (d) shall not be responsible for any action taken or omitted to be taken by it under any Basic Document or under any other document or instrument referred to or provided for in any Basic Document or in connection with any Basic Document, except for its own gross negligence or willful misconduct. 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 The Shareholder Representative may employ agents and attorneys in fact and shall not be removed unless holders responsible for the negligence or misconduct of a majority any such agents or attorneys in interest of the Escrow Fund agree to such removal and to the identity of the substituted agentfact selected by it in good faith. A vacancy in the position of The Shareholder Representative may be filled by deem and treat the holders person named as holder on any certificate representing Company Shares as the record and beneficial holder of a majority in interest such Company Shares for all purposes of the Escrow FundBasic Documents unless and until a notice of the assignment or transfer of such Company Shares shall have been filed with the Shareholder Representative. No bond With respect to its rights and obligations as a Company Shareholder under this Agreement, in its capacity as a Company Shareholder under the Basic Documents, and with respect to its rights, obligations and opportunities as a director, officer, employee or other agent of the Company, any Subsidiary, Parent or any subsidiary of Parent, Shareholder Representative shall be required of have the same rights, privileges and powers under the Basic Documents as any other Company Shareholder and shall have the same rights, privileges and powers under any other agreement as any person not a Company Shareholder and Shareholder Representative may exercise the same as though it were not acting as the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from term “Company Shareholder” shall, unless the context otherwise indicates, include the Shareholder Representative shall constitute notice in its individual capacity. Without limitation on the foregoing, Shareholder Representative (and any successor) and its affiliates may (without having to account for the same to any Company Shareholder) engage in any kind of business with the Company, any Subsidiary, Parent, any subsidiary or affiliate of Parent (and any of their affiliates or associates) as if it were not acting as a Company or Subsidiary director, officer or manager or the Shareholder Representative, and Shareholder Representative and its affiliates may accept fees and other consideration from the Shareholders.
Company, any Subsidiary, Parent, any subsidiary or affiliate of Parent (band any of their affiliates or associates) The for services in connection with this Agreement or otherwise without having to account for the same to any Company Shareholder. Each Company Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Fund was constituted shall agrees to indemnify the Shareholder Representative and hold the Shareholder Representative harmless against its affiliates, directors, officers, employees, attorneys and agents ratably in accordance with their respective holdings of Company Shares, for any lossand all losses, liability liabilities, damages or expense expenses incurred without gross negligence by any of them in connection with or bad faith on the part by reason of any actual or threatened investigation, litigation or other proceedings (including any such investigation, litigation or other proceedings between the Shareholder Representative and arising out any Company Shareholder) relating to the sale of or in connection with Company Shares under, and the acceptance or administration of transactions contemplated by, the Shareholder Representative’s duties hereunderBasic Documents, including the reasonable fees and expenses disbursements of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available incurred in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon connection with any such decisioninvestigation, act, consent litigation or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representativeother proceedings.
Appears in 1 contract
Sources: Acquisition Agreement (VRDT Corp)
Shareholder Representative. (a) The approval by the Shareholders By virtue of the principal terms approval of the Merger shall automatically and without any further action on this Agreement by the part of any Requisite Shareholder constitute the appointment Vote, each of the Shareholder Representative Shareholders shall be deemed to have agreed to appoint ▇▇▇▇ ▇. ▇▇▇▇▇ as the its agent and attorney-in-fact fact, as the Shareholder Representative for each and on behalf of the Shareholders, Shareholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of and directly against the Shareholders in satisfaction of claims by any Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless (i) during the Escrow Period (and any extension thereof) holders of a majority in two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent and (ii) following the Escrow Period (and any extension thereof), each of the Principal Shareholders agrees to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the Shareholders (including the Principal 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 on whose behalf the Escrow Amount was contributed to the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Shareholders. The Escrow Agent and Parent are hereby relieved from any liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
Shareholder Representative. (a) The approval by the Shareholders By virtue of the principal terms approval of the Merger shall automatically and without any further action on this Agreement by the part of any Shareholder constitute the appointment Indemnifying Parties, each of the Shareholder Representative Indemnifying Parties shall be deemed to have agreed to appoint, and by signing this Agreement, Enterprise Partners VI, LP as the agent and attorney-in-fact of each Indemnifying Party, as the Shareholder Representative for each and on behalf of the ShareholdersIndemnifying Parties, to give and receive notices and communications, to agree to the adjustment (if any) of the Aggregate Consideration Amount pursuant to the terms of Section 2.6(h) hereof, to authorize payment to any Indemnified Party from the Escrow Fund or on behalf of the Shareholders Fund, as appropriate, in satisfaction of claims by any Indemnified Party, to object to such the foregoing adjustments or payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder Indemnifying Party or by any such Shareholder Indemnifying Party against any Indemnified Party or Party, any dispute between any Indemnified Party and any such ShareholderIndemnifying Party, any dispute relating to the Company Assumed Liabilities Report, in each case relating to this Agreement or the transactions contemplated hereby, FOIA confidential treatment requested: [***] indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to such omitted portions. and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders Indemnifying Parties from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of at least a majority in two-thirds interest of the Escrow Fund agree to such removal and to the identity appointment of a new Shareholder Representative. Notwithstanding the substituted agent. A vacancy in foregoing, the position of Shareholder Representative may be filled by shall have the right to resign upon at least sixty (60) days’ prior written notice to Parent and the Indemnifying Parties; provided, however, that if holders of at least a majority in two-thirds interest of the Escrow FundFund shall not have appointed a new Shareholder Representative within such sixty (60) day period (the “Vacancy Date”), then from the Vacancy Date until the date on which such holders shall have appointed a new Shareholder Representative, such Indemnifying Parties shall be deemed to have authorized, and the Escrow Agent shall, deliver payment to Parent pursuant to the terms of Section 8.4(f) hereof, without regard to the provisions of Section 8.4(g) and Section 8.4(h). No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersIndemnifying Parties.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgmentfaith. The Shareholders Indemnifying Parties on whose behalf the Total Escrow Amount was contributed to the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after The Indemnifying Parties have agreed to pay the Termination Date, out-of-pocket expenses (including attorney’s fees and subject to Section 9.6, any shares court costs) of Parent Common Stock that remains available the Shareholder Representative in this Article VIII (“Shareholder Representative Deposit”). The Shareholder Representative shall deduct $50,000 from the Escrow Fund shall constitute security Merger Cash and establish and maintain such amount in a separate escrow account (the “Shareholder Representative Account”) for the indemnification obligations set forth Shareholder Representative Deposit solely for the purposes of paying, from time-to-time, such out-of-pocket expenses incurred by the Shareholder Representative in connection with performing and exercising its duties, rights and responsibilities under this Agreement on behalf of the immediately preceding sentence Indemnifying Parties and shall be released distributing any remaining Shareholder Representative Deposit to the Indemnifying Parties in accordance with their respective contribution to the Shareholder Representative upon delivery by the Deposit. The Shareholder Representative to Parent hereby acknowledges and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating agrees that the Shareholder Representative is entitled to such indemnity paymentDeposit shall be used strictly in accordance with the terms and provisions of this Agreement.
(c) Concurrent with the final distribution of the Total Escrow Amount, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by shall be entitled to receive the Escrow Agent, Parent amounts due and payable to the Shareholder Representative or to such other parties pursuant to this Article VIII (to the extent such amounts have not theretofore been paid from the Shareholder Representative Deposit). The Indemnifying Parties shall be entitled to receive any Shareholderremaining Shareholder Representative Deposit after giving effect to the distributions above. A decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the ShareholdersIndemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Escrow Parent, Sub and Exchange Agent and Parent are is hereby relieved from any liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative. FOIA confidential treatment requested: [***] indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to such omitted portions.
(d) Notwithstanding anything in this Agreement to the contrary, the Shareholder Representative shall have no authority to act on behalf of any Indemnifying Party in connection with any claim by an Indemnified Party seeking recovery for any Losses outside of the Escrow Fund.
Appears in 1 contract
Shareholder Representative. (ai) The approval by the Shareholders By virtue of the principal terms approval of the Merger shall automatically and without any further action on this Agreement by the part of any Shareholder constitute the appointment Requisite Stockholder Approval, each of the Shareholder Representative Stockholders shall be deemed to have agreed to appoint J▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as the its agent and attorney-in-fact fact, as the “Shareholder Representative” for each and on behalf of the ShareholdersStockholders to take all actions under this Agreement that are to be taken by the Shareholder Representative. The Shareholder Representative is authorized and empowered to take any and all actions which it believes are reasonably necessary or appropriate under this Agreement, to give including without limitation giving and receive receiving notices and communications, to authorize payment to any Buyer Indemnified Party from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any Buyer Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Buyer Indemnified Party against any Shareholder Stockholder or In the Money Optionholder or by any such Shareholder Stockholder or In the Money Optionholder against any Buyer Indemnified Party or any dispute between any Buyer Indemnified Party and any such ShareholderStockholder or In the Money Optionholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days’ days prior written notice to ParentBuyer Indemnified Parties; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in seventy-five percent (75%) interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his its services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersStockholders and In the Money Optionholders. Without limiting the generality of the foregoing, the Shareholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof thereof in its capacity as Shareholder Representative.
(bii) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf Stockholders and In the Escrow Fund was constituted Money 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 (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares This indemnification shall survive termination of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholderthis Agreement. A decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Shareholders Stockholders and In the Money Optionholders and shall be final, binding and conclusive upon the ShareholdersStockholders and In the Money Optionholders; and the Escrow Agent and Parent Buyer may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersStockholders and In the Money Optionholders. The Shareholder Representative may in all questions arising under this Agreement seek advice of legal counsel, and for anything done, omitted or suffered in good faith by the Shareholder Representative in accordance with such advice, the Shareholder Representative shall not be liable to any Stockholder or In the Money Optionholder. The Escrow Agent and Parent Buyer Indemnified Parties are hereby relieved from any liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Stericycle Inc)
Shareholder Representative. (a) The approval by the Shareholders of the principal terms of the Merger shall automatically and without any further action on the part of any Shareholder constitute the appointment of the Shareholder Representative is hereby appointed as the agent and attorney-in-fact fact, for and on behalf of each of the ShareholdersIndemnifying Party, to give and receive notices and communicationscommunications related to claims for Losses, to authorize payment to any the order of an Indemnified Party from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any an Indemnified Party, to object to and defend against such payments, to bring any claim for indemnification on behalf of any Company Indemnified Partyclaims, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative Representatives for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement; provided, however, that the Shareholder Representative shall have no authority to bind any Indemnifying Party to any liability that is not satisfied solely from the Escrow Fund other than liabilities pursuant to section 6.2(a)(v). Such agency may be changed by the Shareholders Indemnifying Parties from time to time upon not less than thirty (30) days’ days prior written notice to Parentthe Surviving Corporation; provided, however, that the Shareholder Representative may not be removed unless holders of a majority majority-in-interest in interest of the Escrow Fund agree to such removal; provided that if such removal and to results in there being no Shareholder Representative, then the identity of removal shall not be effective until the Shareholders shall have appointed a substituted agent. A Shareholder Representative may resign at any time upon thirty (30) days advance notice to Holdings, the Escrow Agent. A vacancy in the position of Shareholder Representative may at any time prior to the Survival Date shall be filled promptly by the holders of a majority majority-in-interest in interest of the Escrow Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersIndemnifying Parties.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative representatives of the Indemnifying Parties while acting in good faith even though such act or omission constitutes negligence on the part of such Shareholder Representative. The Shareholder Representative may engage attorneys, accountants and other professionals and experts. The Shareholder Representative may in good faith rely conclusively on information, reports, statements, opinions, including financial statements, about the Company, the Surviving Company or another Person, that were prepared or presented by (i) one or more officers or employees of the Company or Surviving Corporation, or (ii) legal counsel, public accountants, investment bankers or other Persons as to matters the Shareholder Representative believes in good faith are within the Person’s knowledge, professional or expert competence. Any action taken by the Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith and in full satisfaction of the exercise duties of reasonable judgmentsuch Shareholder Representative’s duties. The Shareholders Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the Shareholder Representative’s obligations to the Escrow Agent hereunder and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Representatives. The Shareholder Representative Expenses”). Promptly after has only the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available duties expressly stated in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent this Agreement and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Agreement, and shall have no other duty, express or implied. The Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity not a fiduciary of the Indemnifying Parties. The Shareholder Representative Expenses reasonably requested by has no responsibility or liability for any representation, warranty or covenant of the Escrow AgentCompany, Parent the Surviving Company, Holdings or any ShareholderSub except in his capacity as an Indemnifying Party. THE INDEMNIFYING PARTIES AND THE SHAREHOLDER REPRESENTATIVE INTEND THAT THE SHAREHOLDER REPRESENTATIVE SHALL BE INDEMNIFIED AND HELD HARMLESS BY THE INDEMNIFYING PARTIES FROM AND AGAINST ANY LIABILITY FOR HIS OWN NEGLIGENCE PURSUANT TO THIS SECTION 6.3(b).
(c) A decision, act, consent or instruction of from the Shareholder Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 7.3 and Section 7.4 hereof, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the Shareholders; Indemnifying Parties, and the Escrow Agent and Parent the Indemnified Party may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Escrow Agent and Parent Indemnified Party are hereby relieved from any liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(d) The Shareholder Representative shall have reasonable access to information about the Surviving Company and the reasonable assistance of the Surviving Company’s officers and employees for the purpose of performing its duties and exercising its rights hereunder, provided that the Shareholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Surviving Company to anyone (except on a need to know basis to counsel, witness and experts necessary to perform their duties hereunder who agree to treat such information confidentially).
(e) According to the terms of the Escrow Agreement, the Shareholder Representative shall be entitled to withhold from interest earned on the Escrow Fund and from amounts to be distributed from the Escrow Fund to the Indemnifying Parties a portion of the Escrow Fund that is equal to the reasonable estimated expenses to be incurred by the Shareholder Representative as specified in a Certificate to be delivered to the Escrow Agent.
Appears in 1 contract
Shareholder Representative. (a) The approval of this Agreement by the Shareholders shall constitute their ratification and approval of the principal terms of the Merger shall automatically and without any further action on the part of any Shareholder constitute the appointment of the Shareholder Representative as the agent and attorney-in-fact for each pursuant to this Agreement to act on behalf of the ShareholdersIndemnifying Parties, which shall include the power and authority (on all matters other than those designated to the Earnout Representative pursuant to Section 1.6(e)):
(i) for purposes of this Article VII, to give and receive notices and communications, to authorize payment delivery to any Indemnified Party of cash from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any an Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Partydeliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration bring suit and comply with orders of courts Orders and awards of arbitrators courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Shareholder or by any such Shareholder against any Indemnified Party or any dispute between any Indemnified Party and any such Shareholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or foregoing;
(ii) specifically mandated to execute and deliver such waivers and consents in connection with this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby as the Shareholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions which the Shareholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Shareholder Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Shareholder Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the terms Shareholder Representative or by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated hereby.
(b) The Shareholder Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders representing a majority of this Agreementthe Pro Rata Portions shall appoint a successor. Such agency Additionally, the Shareholder Representative may be changed by the Shareholders from time to time Indemnifying Parties upon not less than thirty ten (3010) days’ prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Shareholder Representative may be filled signed by the holders of representing a majority in interest of the Escrow FundPro Rata Portions. The outgoing Stockholders’ Representative shall be entitled to immediate reimbursement of all Shareholder Representative Expenses pursuant to Section 7.6(f) hereof. The successor shall be entitled to all the rights, powers, immunities and privileges as was his or her predecessor, without the need of any further act or writing. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his or her services. Notices or communications to or from the Shareholder Representative shall constitute notice to or from each of the ShareholdersIndemnifying Parties.
(bc) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith (and in any act done or omitted pursuant to the exercise advice of reasonable judgment. The Shareholders on whose behalf counsel shall be conclusive evidence of such good faith) and without gross negligence or willful misconduct.
(d) A decision, act, consent or instruction of the Shareholder Representative with respect to the matters regarding the Escrow Fund was constituted contemplated by this Section 7.6, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of all of the Indemnifying Parties and shall be final, binding and conclusive, and the Escrow Agent and the Indemnified Parties may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Escrow Agent and the Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(e) Parent and Sub, on behalf of all Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Shareholder Representative.
(f) The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including any out-of-pocket costs and the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses” and together with Earnout Representative Expenses, the “Representative Expenses”). Promptly after Following the Termination Datetermination of the Escrow Fund, the resolution of all Unresolved Claims and subject the satisfaction of all claims made by Indemnified Parties for Losses, the Shareholder Representative shall have the right to Section 9.6, any shares of Parent Common Stock that remains available in recover Shareholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall constitute security for deliver to the indemnification obligations set Escrow Agent a certificate setting forth in the immediately preceding sentence Shareholder Representative Expenses actually incurred, to the extent such Shareholder Representative Expenses exceed the amount of the Representative Fund and shall be released if such Shareholder Representative Expenses have not been paid directly to the Shareholder Representative upon delivery by the Indemnifying Parties. After the release of the Escrow Fund pursuant to the terms of this Agreement, the Shareholder Representative may seek recovery of any unpaid Shareholder Representative Expenses from the Indemnifying Parties according to Parent their respective Pro Rata Portions.
(g) The Shareholder Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Shareholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder, with the fees and expenses of such engagements and assistance considered Shareholder Representative Expenses. The Shareholder Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals.
(h) The Shareholder Representative shall have reasonable access to information about the Company and the Escrow Agent prior to reasonable assistance of the Termination Date Surviving Corporation’s officers and employees for purposes of a certificate signed by the Shareholder Representative: (1) stating performing his duties and exercising his rights hereunder, provided that the Shareholder Representative is entitled shall treat confidentially and not disclose any nonpublic information from or about the Surviving Corporation to anyone (except on a need to know basis to individuals who agree to treat such indemnity payment, (2information confidentially). The Shareholder Representative shall be responsible for any breach of this Section 7.6(g) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of individuals the Shareholder Representative Expenses reasonably requested by the Escrow Agent, shares such information with and shall keep Parent or any Shareholder. A decision, act, consent or instruction promptly informed of those individuals the Shareholder Representative shares such information with.
(i) At the Effective Time, Parent shall constitute a decision deposit or cause to be deposited, by wire transfer of immediately available funds, the Representative Amount with the Earnout Representative (the “Representative Fund”). If the Earnout Representative ceases to be the Earnout Representative under this Agreement, he or she shall transfer any amounts remaining in the Representative Fund to the successor Earnout Representative. The Representative Fund (plus any interest paid on such Representative Fund) shall be available to reimburse the Earnout Representative or the Shareholder Representative, as applicable and in each case on behalf of the Shareholders and Indemnifying Parties, for any Representative Expenses actually incurred prior to the determination of Final CY13 EBIT in accordance with Section 1.6(e) hereof. Following such determination of Final CY13 EBIT, the Earnout Representative shall be final, binding and conclusive upon distribute such portion of the Shareholders; and Representative Fund which has not been used to reimburse the Escrow Agent and Parent may rely upon any such decision, act, consent Earnout Representative or instruction of the Shareholder Representative for Representative Expenses, if any, to the Effective Time Holders as being the decision, act, consent or instruction of the Shareholders. The if such distribution was an Escrow Agent and Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder RepresentativeRelease.
Appears in 1 contract
Shareholder Representative. (a) The By virtue of the execution and delivery of a Joinder Agreement, and the adoption of this Agreement and approval of the Mergers by the Shareholders Shareholders, each of the principal terms of the Merger Equityholders shall automatically and without any further action on the part of any Shareholder constitute the appointment of the Shareholder Representative be deemed to have agreed to appoint ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual, as the its, his or her agent and attorney-in-fact fact, as the Shareholder Representative for each and on behalf of the Shareholders, Indemnifying Parties to give and receive notices and communicationscommunications in respect of indemnification claims under this Agreement to be recovered against the Holdback Fund, to authorize payment to any Indemnified Party from the Escrow Holdback Fund or on behalf of the Shareholders in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other such indemnification claim by any Indemnified Party hereunder against any Shareholder Indemnifying Party or by any such Shareholder Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such ShareholderIndemnifying Party, in each case relating to this Agreement or the transactions contemplated herebyTransactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in two- thirds interest of the Escrow Holdback Fund agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, in the event of a resignation of the Shareholder Representative or other vacancy in the position of Shareholder Representative Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Holdback Fund. No bond shall be required of the Shareholder Representative, and the Shareholder Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholder Representative after the Closing shall constitute notice to or from the ShareholdersIndemnifying Parties.
(b) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Fund was constituted shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholder Representative (“Shareholder Representative Expenses”). Promptly after the Termination Date, and subject to Section 9.6, any shares of Parent Common Stock that remains available in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released to the Shareholder Representative upon delivery by the Shareholder Representative to Parent and the Escrow Agent prior to the Termination Date of a certificate signed by the Shareholder Representative: (1) stating that the Shareholder Representative is entitled to such indemnity payment, (2) specifying in reasonable detail the basis of such claim, and (3) accompanied by any additional documentation evidencing the validity of the Shareholder Representative Expenses reasonably requested by the Escrow Agent, Parent or any Shareholder. A decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the Shareholders; and the Escrow Agent Indemnifying Parties, and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Escrow Agent and Parent are is hereby relieved from any liability to any Person person for any acts done by Parent in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(c) The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith. The Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder or under any agreements ancillary hereto, including the fees and expenses of any legal counsel or experts retained by the Shareholder Representative (“Shareholder Representative Expenses”) in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Shareholders the amount of such indemnified Shareholder Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholder Representative by the Indemnifying Parties, any such Shareholder Representative Expenses may be recovered by the Shareholder Representative from (i) the funds in the Expense Fund and (ii) the amounts in the Holdback Fund at such time as remaining amounts would otherwise then be distributable to the Indemnifying Parties (which, for the avoidance of doubt, shall not include any amounts that remain held in the Holdback Fund subject to the resolution of any pending indemnification claims); provided, that while this section allows the Shareholder Representative to be paid from the Expense Fund and the Holdback Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholder Representative or the termination of this Agreement. The Shareholder Representative shall be entitled to use the Expense Fund in order to fund all Shareholder Representative Expenses. Following the termination of the Holdback Fund, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses hereunder, the Shareholder Representative shall have the right to recover Shareholder Representative Expenses incurred in excess of the amounts in the Expense Fund and not previously recovered directly from the Indemnifying Parties from the Holdback Fund, prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to Parent a certificate setting forth the Shareholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Shareholder Representative to be paid from the Holdback Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Shareholder Representative Expenses as they are incurred, to the extent the Expense Fund is insufficient or unavailable. A decision, act, consent or instruction of the Shareholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 10.2 or Section 10.3, shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
Appears in 1 contract
Shareholder Representative. (a) The By virtue of the approval of the First Step Merger and this Agreement by the Shareholders Indemnifying Parties, each of the principal terms of the Merger Indemnifying Parties shall automatically and without any further action on the part of any Shareholder constitute the appointment of the be deemed to have agreed to appoint Shareholder Representative Services LLC as the its agent and attorney-in-fact fact, as the Shareholder Representative with full power and authority to act for each and on behalf of the Shareholders, Indemnifying Parties to give and receive notices and communications, to direct the Escrow Agent to cause to be sold all of the shares of Parent Common Stock in the Escrow Fund and the Expense Escrow Fund pursuant to Section 8.7(c), to authorize payment to any Indemnified Party or Parties from the Escrow Fund or on behalf of the Shareholders in satisfaction of claims by any such Indemnified PartyParty or Parties pursuant to Section 8.2(a), to object to such payments, to bring any claim for indemnification on behalf of any Company Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration request mediation as provided in this Agreement and comply with orders of courts and awards of arbitrators mediators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration request mediation and comply with orders of courts and awards of arbitrators mediators with respect to, any other claim by any Indemnified Party or Parties against any Shareholder Indemnifying Party or by any such Shareholder Indemnifying Party against any Indemnified Party or Parties or any dispute between any Indemnified Party or Parties and any such ShareholderIndemnifying Party, to authorize the sale of all of the shares of Parent Common Stock in the Escrow Fund and deliver an Escrow Sale Instruction Letter to the Escrow Agent pursuant to Section 8.7(c)(i), and to execute all such documents necessary or appropriate in the sole opinion of the Shareholder Representative for the accomplishment of the foregoing, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. The Shareholder Representative may resign at any time. Such agency may be changed by the Shareholders Indemnifying Parties from time to time upon not less than thirty (30) days’ days prior written notice to Parent; provided, however, that the Shareholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund outstanding shares of Company Capital Stock as of immediately prior to the Effective Time agree to such removal and to the identity of the substituted agent. A Notwithstanding the foregoing, a vacancy in the position of Shareholder Representative may be filled by the vote of holders of a majority in interest of the Escrow Fundoutstanding shares of Company Capital Stock as of immediately prior to the Effective Time. No bond shall be required of the Shareholder Representative. After the Closing, and the Shareholder Representative shall not receive any compensation for his services. Notices notices or communications to or from the Shareholder Representative shall constitute notice to or from the ShareholdersIndemnifying Parties.
(b) The Expense Escrow Amount (collectively, with any interest accrued thereon, the “Expense Escrow Fund”) shall be available to pay directly, or reimburse the Shareholder Representative for, Shareholder Representative Expenses (as defined in Section 8.8(c) below) that are incurred without gross negligence or bad faith on the part of the Shareholder Representative and that arise out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder. From time to time prior to the end of the Escrow Period, the Shareholder Representative may deliver a written certificate (a “Shareholder Representative Certificate”), signed by the Shareholder Representative, to the Escrow Agent (A) stating that the Shareholder Representative is entitled to be paid, or to be reimbursed, from amounts then available in the Expense Escrow Fund the aggregate amount of the Shareholder Representative Expenses incurred by the Shareholder Representative that are set forth in the Shareholder Representative Certificate, and (B) certifying that all such Shareholder Representative Expenses set forth in such Shareholder Representative Certificate were reasonably and actually incurred by the Shareholder Representative in connection with the administration of its duties and the fulfillment of its obligations under this Agreement. Each Shareholder Representative Certificate delivered by the Shareholder Representative to the Escrow Agent pursuant to this Section 8.8(b) shall contain a reasonably detailed description of all Shareholder Representative Expenses for which payment or reimbursement is sought by the Shareholder Representative. The Escrow Agent shall not be responsible for making any assessments of any Shareholder Representative Certificate and shall be entitled to rely conclusively upon its contents. Provided the Shareholder Representative Certificate delivered by the Shareholder Representative complies with the requirements set out in this Section 8.8(b), the Escrow Agent shall promptly distribute to or as directed by the Shareholder Representative, to the extent such amount is then available in the Expense Escrow Fund, the aggregate amount of the Shareholder Representative Expenses set forth in such Shareholder Representative Certificate.
(c) 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 judgmentwithout gross negligence or willful misconduct. The Shareholders on whose behalf the Escrow Fund was constituted Indemnifying Parties shall indemnify the Shareholder Representative and hold the Shareholder Representative harmless against any losslosses, liability liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs or expense incurred without gross negligence or bad faith on expenses (including the part fees and expenses of the Shareholder Representative counsel and experts and all expenses with respect to document location, duplication and shipment) 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 (collectively, “Shareholder Representative Expenses”), in each case as such Shareholder Representative Expense is suffered or incurred; provided, that in the event that any such Shareholder Representative Expense is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Shareholder Representative, the Shareholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Shareholder Representative Expenses to the extent attributable to such bad faith, gross negligence or willful misconduct. Promptly after If not paid directly to the Termination Date, and subject to Section 9.6Shareholder Representative by the Indemnifying Parties, any shares such Shareholder Representative Expenses shall be recovered by the Shareholder Representative from (i) funds in the Expense Escrow Fund and (ii) to the extent the funds in the Expense Escrow Fund are insufficient, if then available after satisfaction of Parent Common Stock that remains available all claims of an Indemnified Party or Parties, the amounts in the Escrow Fund shall constitute security for the indemnification obligations set forth in the immediately preceding sentence and shall be released prior to any distribution thereof to the Shareholder Representative upon delivery by Indemnifying Parties; provided, that while this section allows the Shareholder Representative to Parent be paid from the Expense Escrow Fund and the Escrow Agent prior Fund, this does not relieve the Indemnifying Parties from their obligation to the Termination Date of a certificate signed by the promptly pay such Shareholder Representative: (1) stating that Representative Expenses as they are suffered or incurred, nor does it prevent the Shareholder Representative is entitled from seeking any remedies available to such indemnity payment, (2) specifying in reasonable detail it at law or otherwise. In no event will the basis Shareholder Representative be required to advance its own funds on behalf of such claim, the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and (3) accompanied by any additional documentation evidencing agree that the validity foregoing indemnities will survive the resignation or removal of the Shareholder Representative Expenses reasonably requested by or the Escrow Agent, Parent or any Shareholdertermination of this Agreement. A decision, act, consent or instruction of the Shareholder Representative Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4, shall constitute a decision of the Shareholders Indemnifying Parties and shall be final, binding and conclusive upon the ShareholdersIndemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholder Representative as being the decision, act, consent or instruction of the ShareholdersIndemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to any Person person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholder Representative.
(d) After the completion of the Shareholder Representative’s responsibilities, the Shareholder Representative shall instruct the Escrow Agent to distribute any cash remaining in the Expense Escrow Fund to the Indemnifying Parties in accordance with such Indemnifying Parties’ respective Pro Rata Portions of the remaining amounts in the Escrow Fund, with the amount delivered to each Indemnifying Party rounded to the nearest one hundredth (0.01) (with amounts 0.005 and above rounded up).
Appears in 1 contract
Sources: Merger Agreement (Solarcity Corp)