Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form. (b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. (c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 4 contracts
Sources: Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp), Share Purchase Agreement (Boxlight Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Shareholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, ▇▇▇▇▇▇▇ ▇▇ as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Shareholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Shareholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Shareholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Shareholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Shareholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Shareholders from their obligation to promptly pay such Representative ▇▇▇▇▇▇ as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Shareholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Shareholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 3 contracts
Sources: Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp), Merger Agreement (Oak Woods Acquisition Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting Upon approval of the Merger and this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest the Company Common Stock under applicable Law, each of the shares of Everest of Former Company Shareholders will be deemed to have irrevocably appointed SpinCo, as its, his or her true and lawful attorney-in-fact and agent (the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the “Shareholders’ Representative. Notices ”), with full power of substitution or communications resubstitution, to or from act solely and exclusively on behalf of such Former Company Shareholder with regard to matters pertaining to (i) the Shareholders’ Representative indemnification by the Former Company Shareholders referred to Parent shall constitute notice in this Article VII, including the power to or from each compromise any Claim on behalf of the Selling Partiessuch Former Company Shareholder, except for notices related to any action for which the Selling Parties’ consent is required and (ii) all matters under the terms of this Escrow Agreement or applicable law. Each Selling Party agrees relating to receive correspondence from the Shareholders’ Representative, including in electronic formEscrow Shares.
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. By their appointment of the Shareholders’ Representative, the Former Company Shareholders thereby confirm all that the Shareholders’ Representative shall do or cause to be done by virtue of its appointment as the representative of the Former Company Shareholders hereunder. The Shareholders’ Representative shall act for the Former Company Shareholders on all of the matters set forth in this Article VII and the Escrow Agreement in the manner the Shareholders’ Representative believes to be in the best interest of the Former Company Shareholders and consistent with the obligations of the Former Company Shareholders under this Article VII and the Escrow Agreement, but the Shareholders’ Representative shall not be liable responsible to any Former Company Shareholder for any act done or omitted hereunder as damages which the Shareholders’ Representative while acting in good faith and without negligence and Former Company Shareholders may suffer by the performance (including any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part damages arising out of the Shareholders’ Representative and arising out Representative’s negligence) of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Representative’s duties hereunder, other than damages arising from willful violation of applicable Law or risk its own funds or otherwise incur any financial liability willful misconduct in the exercise or performance of any of its powers, rights, such duties or privileges under this Agreement on behalf of any Selling Partieshereunder. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared shall not have any duties or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary responsibilities except those expressly set forth in this Agreement or the Option Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall pay all of the expenses incurred by the Shareholders’ Representative in performing its duties hereunder. The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Former Company Shareholder or Parent, or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall only have the power or authority be entitled to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the advice of counsel selected by it.
(c) The Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in is an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) intended beneficiary of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties7.8.
Appears in 2 contracts
Sources: Merger Agreement (Smith a O Corp), Merger Agreement (Smith Investment Co)
Shareholders’ Representative. (a) The Selling PartiesBy executing this Agreement, each of the Shareholders hereby irrevocably constitutes and appoints Executive, acting as hereinafter provided, as his or her attorney-in-fact and agent in his or her name, place and stea▇ ▇▇ connection with the transactions contemplated by adopting this Agreement and matters arising therefrom subsequent to the transactions contemplated herebydate hereof, and acknowledges that such appointment is coupled with an interest. By executing and delivering this Agreement, Executive hereby irrevocably appoint (i) accepts his appointment and constitute K Laser authorization as Shareholders' Representative to act as attorney-in-fact and agent in the name, place and stead of each of the Shareholders in accordance with the terms of this Agreement, and (ii) agrees to perform his duties and obligations hereunder.
(b) Each Shareholder authorizes the Shareholders’ ' Representative for in the name and on behalf of the Selling Parties, with the authority such Shareholder:
(i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices any notice required or permitted under this Agreement;
(ii) to exercise any rights and communications, to take any action required or permitted to be taken under this Agreement;
(iii) to agree to, negotiate, enter into execute and provide amendments deliver any amendment to or modification of this Agreement or any of the provisions hereof and supplements any waiver or consent hereunder;
(iv) to dispute or to refrain from disputing any claim made by Parent or Subsidiary under this Agreement and waivers in respect any other agreements, instruments and documents to be delivered by or on behalf of such Shareholder pursuant to this Agreement;
(v) to negotiate and compromise any dispute which may arise, and to exercise or refrain from exercising remedies available under this Agreement and the Option Agreementother agreements, (iv) instruments and documents delivered or to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be delivered by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Shareholder pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to sign any releases or other documents with respect to any Selling Party such dispute or remedy; and
(vi) to give such instructions and to do such other things and refrain from doing such other things as the Shareholders' Representative shall deem necessary or appropriate to carry out the provisions of this Agreement and any other agreements, instruments and documents delivered or to be delivered by or on behalf of such Shareholder pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Merger Agreement (Shaw Industries Inc), Merger Agreement (Saul Julian)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative Escrow Agreement, stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive disbursements from the Option Escrow Fund pursuant to the Escrow Agreement and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts held under the Escrow Agreement, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to direct the Escrow Agent to disburse funds from the Escrow Fund and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon termination of Sellers' obligations pursuant to Article VIII. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from Sellers, with each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively Seller to have been taken in good faiththat number of votes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (KMG America CORP), Stock Purchase Agreement (KMG America CORP)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each of the Indemnifying Shareholders hereby appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as its agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser attorney-in-fact as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority Indemnifying Shareholders to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Parent (on behalf of himself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreements or any of the transactions and other matters contemplated hereby or thereby, (ii) authorize deliveries to Parent of cash or shares from the Cash Escrow Fund or the Stock Escrow Fund, as the case may be, in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims) pursuant to ARTICLE 7, (iii) object to such claims in accordance with Section 7.4, (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements to demand mediation and waivers in arbitration and comply with orders of courts and awards of arbitrators with respect of this Agreement and to, such claims, except for claims for indemnification made directly against the Option AgreementIndemnifying Shareholders, (ivv) bind such Indemnifying Shareholder to retain legal counselthe contract referenced in Section 7.8(c) pursuant to which the Shareholders’ Representative agrees on behalf of all Indemnifying Shareholders that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of a third-party claim, accountantsthe defense or settlement of which is controlled by the Shareholders’ Representative in accordance with Section 7.8, consultants and other expertsregardless of the limitations set forth in this ARTICLE 7, and incur any other reasonable expenses, in connection with, and (vi) Indemnifying Shareholder to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or that are specifically mandated by the terms of this Agreement, in each case without having to seek or obtain the consent of any Person under any circumstance, and (vii) act as expressly set forth in this Agreement. K Laser hereby accepts The Shareholders’ Representative shall be the sole and exclusive means of asserting or addressing any of the above, and no former shareholder shall have any right to act on its appointment as own behalf with respect to any such matters, other than any claim or dispute against the Shareholders’ Representative. Such agency The Person serving as the Shareholders’ Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of held immediately prior to the Selling Parties from time to time Effective Time by the Indemnifying Shareholders upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Indemnifying Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to any Indemnifying Shareholder for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Indemnifying Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon consult with legal counsel, independent public accountants and other experts selected by it and shall be reimbursed by the informationIndemnifying Shareholders for the reasonable fees and expenses of such counsel, reports, statements accountants and opinions prepared or presented by counsel or other professionals retained by it, expects and any action taken other cost and expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about the foregoing provisions in this ARTICLE VIIICompany and the reasonable assistance of the Company’s former officers and employees for purposes of performing his duties and exercising its rights hereunder, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about the Company to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Shareholders’ Representative. Each of the Selling Shareholders (a) The Selling Partiesincluding the Former Company Share Award Holders), by adopting virtue of its, his or her execution and delivery of this Agreement (directly, by proxy or pursuant to a power of attorney), hereby irrevocably constitutes and appoints ▇▇▇▇▇ ▇▇▇▇▇, a Principal and the Chief Executive Officer of the Company as of the date of this Agreement (the “Shareholders Representative”), to be such Selling Shareholder’s true and lawful representative, agent and attorney-in-fact to act on such Selling Shareholder’s behalf with respect to any actions permitted to be taken by such Selling Shareholder, or any of them, after the date of this Agreement in connection with this Agreement and the other Transaction Documents and the transactions contemplated herebyhereby and thereby, hereby irrevocably appoint in accordance with the terms and constitute K Laser conditions of the Transaction Documents. In such representative capacity, the Shareholders Representative shall take or refrain from taking, and the Selling Shareholders each agree that the Shareholders Representatives may take or refrain from taking, any and all actions which the Shareholders Representative reasonably believes, acting in good faith, to be necessary or appropriate under this Agreement and the other Transaction Documents (except as the Shareholders’ Representative provided above) for and on behalf of the Selling PartiesShareholders, with as fully and effectively as if the authority (i) to perform the obligations of the Shareholders’ Representative set forth Selling Shareholders were acting on their own behalf. Each reference in this Agreement or any other Transaction Document to an action to be taken by the Selling Shareholders shall, with respect to the Selling Shareholders, be taken by the Shareholders Representative on their behalf pursuant to this Section 7.18. Each Selling Shareholder hereby ratifies and confirms, and agrees to ratify and confirm in the future upon the request of the Shareholders Representative, any action taken by the Shareholders Representative in the exercise of the agency and power of attorney granted to the Shareholders Representative pursuant to this Section 7.18, which agency and power of attorney, being coupled with an interest, is irrevocable and a durable agency and power of attorney and shall survive the death, incapacity or incompetence of such Selling Shareholder. Each of Purchaser and the Option AgreementEscrow Agent shall be entitled to conclusively rely upon the directions, (ii) instructions and notice of the Shareholders Representative, when it is acting in their capacity as such under this Section 7.18, without being required to give undertake any independent investigation or verification, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers any notice provided in respect of accordance with this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Shareholders Representative in its capacity as such shall be conclusively deemed to Parent shall constitute notice have been provided to or from each of the Selling PartiesShareholders, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawas applicable. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholders Representative shall not be liable for have any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and liability to any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Selling Shareholders arising out of or relating to any action taken or omission made in good faith by the Shareholders Representative (in its capacity as such) pursuant to this Agreement, and each Selling Shareholder shall, severally but not jointly, indemnify, defend and hold harmless the Shareholders Representative with respect to all actions so taken or omissions made on behalf of such Selling Shareholder up to the net proceeds received by such Selling Shareholder in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithTransactions.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Share Purchase Agreement (Baidu, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect For purposes of this Agreement and the Option Escrow Agreement, the Sellers hereby designate ▇▇▇▇▇ ▇▇▇▇▇, III, to serve as the sole and exclusive representative of the Sellers (ivthe “Shareholders’ Representative”) from and after the Closing Date with respect to retain legal counselthe matters set forth in this Agreement, accountants, consultants such service to be without compensation except for the reimbursement by the Sellers of out-of-pocket expenses and other experts, indemnification specifically provided herein. The Sellers shall be bound by any and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of taken by the Shareholders’ Representative for on their behalf, including without limitation payments made pursuant to Article 10 hereof. Notwithstanding anything to the accomplishment ofcontrary contained in this Agreement, any the Shareholders’ Representative shall have no duties or all responsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of the foregoing. K Laser hereby accepts its appointment as Company or any Seller shall otherwise exist against the Shareholders’ Representative. Such agency may be changed by the holders of a majority Except as expressly provided in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from this Agreement, the Shareholders’ Representative shall have no duties or responsibilities to Parent shall constitute notice to Buyer or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formits Affiliates.
(b) The Shareholders’ Representative shall not promptly deliver to each Seller any notice received by the Shareholders’ Representative concerning this Agreement or the Escrow Agreement.
(c) Neither the Shareholders’ Representative nor any agent employed by the Shareholders’ Representative shall be liable to any Seller relating to the performance of such Shareholders’ Representative’s duties under this Agreement or the Escrow Agreement or for any act done errors in judgment, negligence, oversight, breach of duty or omitted hereunder otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Shareholders’ Representative constituted fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Sellers against all losses, including costs of defense, paid or incurred in connection with any action, suit, proceeding or claim to which the Shareholders’ Representative is made a party by reason of the fact that the Shareholders’ Representative was acting as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)this Agreement; provided, according to each Selling Parties’ pro-rata interest in the shares of Everesthowever, indemnify that the Shareholders’ Representative shall not be entitled to indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and hold it harmless against any loss, liability convincing evidence that the actions taken or expense incurred without gross negligence or bad faith on the part of not taken by the Shareholders’ Representative and arising out of constituted fraud or were taken or not taken in connection with the acceptance bad faith. The Shareholders’ Representative shall be protected in acting upon any notice, statement or administration of his duties hereunder. No provision of this Agreement shall require certificate believed by the Shareholders’ Representative to expend be genuine and to have been furnished by the appropriate Person and in acting or risk its own funds or otherwise incur refusing to act in good faith on any financial liability in matter. Neither the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith nor any agent employed by the Shareholders’ Representative shall be liable to Buyer or any Affiliate of Buyer by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise.
(d) Buyer shall be entitled to rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based as the duly authorized action of the Shareholders’ Representative on such reliance shall be deemed conclusively behalf of each Seller with respect to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary matter set forth in this Agreement or the Option Escrow Agreement, the Shareholders’ Representative shall only have the power or authority . All notices to act with respect to matters pertaining be sent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Sellers pursuant to this Agreement and the Option AgreementEscrow Agreement may be addressed to the Shareholders’ Representative only, and any notice so sent shall be deemed notice to all of the Sellers hereunder. The Sellers hereby consent and agree that the Shareholders’ Representative is authorized to accept notice on behalf of all of the Sellers pursuant hereto.
(iie) alters The Shareholders’ Representative is hereby appointed and constituted the consideration payable true and lawful attorney-in-fact of each Seller, with full power in its name and on its behalf to any Selling Party pursuant act according to the terms of this Agreement in the absolute discretion of the Shareholders’ Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, waivers, amendments, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted in consideration of the Option Agreementmutual covenants and agreements made herein, or (iii) adds to or results in an increase and shall be irrevocable and shall not be terminated by any act of any Selling Party’s indemnity Seller or by operation of Law, whether by death or any other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Freedom Group, Inc.), Stock Purchase Agreement (Remington Arms Co Inc/)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf Each of the Selling PartiesShareholders hereby constitutes and appoints G2BE as its representative (the "Shareholders' Representative") and its true and lawful attorney in fact, with the full power and authority in its name on its behalf:
(i) to perform act on such Shareholder's behalf in the obligations absolute discretion of the Shareholders’ ' Representative set forth in with respect to all matters relating to this Agreement and the Option Agreement, (ii) to give including the execution and receive notices and communicationsdelivery of any amendment, (iii) to agree tosupplement, negotiate, enter into and provide amendments and supplements to and waivers in respect or modification of this Agreement and the Option any waiver of any claim or right arising out of this Agreement; and
(ii) in general, (iv) to retain legal counseldo all things and to perform all acts, accountantsincluding executing and delivering all agreements, consultants certificates, receipts, instructions, and other experts, and incur any other reasonable expenses, instruments contemplated by or deemed advisable to effectuate the provisions in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 3.9.
(b) The Shareholders’ Representative appointment and grant of power and authority in Section 3.9(a) is coupled with an interest and is in consideration of the mutual covenants made in this Agreement and is irrevocable and shall not be liable for terminated by any act done of any Shareholder or omitted hereunder as by operation of law, whether by the death or incapacity of any Shareholder or by occurrence of any other event. Each Shareholder hereby consents to the taking of any and all actions and the making of any decisions required and permitted to be taken or made by the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencethis Section 3.9. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify Each Shareholder agrees that the Shareholders’ ' Representative and hold it harmless against shall have no obligation or liability to any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and person for any action taken or omitted by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith, and each Shareholder shall indemnify and hold harmless the Shareholders' Representative from, and shall pay to the Shareholders' Representative the amount of, or reimburse the Shareholders' Representative for, any Loss that the Shareholders' Representative may suffer, sustain, or become subject to as a result of any such action or omission by the Shareholders' Representative under this Agreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Brigade and G2BE shall be entitled to rely upon any documents or any provision to the contrary set forth in this Agreement or the Option Agreement, other paper delivered by the Shareholders’ ' Representative shall only have as being authorized by the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Shareholders, and the powers conferred on the Shareholders’ Representative herein Brigade and in the Option Agreement G2BE shall not authorize be liable to any Shareholder for any action taken or empower the Shareholders’ Representative to do or cause omitted to be done any action taken by Brigade and G2BE based on such reliance.
(including by amending, modifying or waiving any provision of this Agreement or the Option Agreementd) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other Until all obligations or liabilities under this Agreement (includingshall have been discharged, for the avoidance of doubtShareholders who, any change immediately prior to the nature Closing are entitled in the aggregate to receive more than 50% of the indemnity obligations)Brigade Common Shares, in each case with respect may, from time to clauses (i)time upon notice to Brigade and G2BE, (ii) and (iii) of this Section 8.1(c), without first obtaining appoint a new Shareholders' Representative upon the prior written approval resignation of the Selling PartiesShareholders' Representative. If, after the resignation of the Shareholders' Representative, a successor Shareholders' Representative shall not have been appointed by the Shareholders within 15 Business Days after a notice to Brigade and G2BE, Brigade and G2BE may appoint a Shareholders' Representative from among the Shareholders to fill any vacancy so created by notice of such appointment to the Shareholders.
Appears in 2 contracts
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Sellers and the transactions contemplated hereby, Shareholders hereby irrevocably constitute and appoint and constitute K Laser as the Shareholders’ Representative for as their true and lawful attorney-in-fact and agent with full power of substitution to: (i) accept on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Sellers and the Option Agreement, Shareholders service of process and any notices required to be served on any Shareholders; and (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary to be taken by Sellers or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofShareholders under this Agreement, including to deliver notices to be served on Buyers by any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties such Party and to Parent control the defense and Purchaser. No bond shall be required settlement of the Shareholders’ Representative. Notices any and all claims for indemnification by any Buyer Parties against any Seller or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required Shareholder under the terms Article 10 of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and each Shareholder hereby agree that: (i) in all matters in which action by the Shareholders’ Representative while acting in good faith and without negligence and any act done is required or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)permitted, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative is authorized to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement act on behalf of Sellers and the Shareholders, notwithstanding any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared dispute or presented by counsel disagreement among any Seller or other professionals retained by itany Shareholder, and any Buyer Party will be entitled to rely on any and all action taken by the Shareholders’ Representative based under this Agreement without any liability to, or obligation to inquire of, any Seller or any Shareholder, notwithstanding any knowledge on the part of any Buyer Party of any such reliance shall dispute or disagreement; (ii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 11.4, will be deemed conclusively to be notice to Sellers and all Shareholders for the purposes of this Agreement; (iii) the power and authority of the Shareholders’ Representative, as described in this Agreement, will continue in full force until all rights and obligations of Sellers and the Shareholders under this Agreement will have terminated, expired or been taken in good faithfully performed.
(c) Notwithstanding Sellers and each Shareholder agree that, notwithstanding the foregoing provisions in this ARTICLE VIIIforegoing, at the request of Buyers, each Seller or any provision such Shareholder will take all actions necessary or appropriate to consummate the transaction contemplated hereby individually on such Seller’s or Shareholder’s own behalf, and delivery of each and every document required of such Seller or Shareholder pursuant to the contrary set forth in this Agreement or terms hereof.
(d) In the Option Agreement, event that the Shareholders’ Representative shall only have dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, then the power or authority Shareholders then holding a majority of the outstanding shares of DSI will select another representative to act with respect fill such vacancy and such substituted representative will be deemed to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on be the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision for all purposes of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party documents delivered pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partieshereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Shareholders’ Representative. Each of the Shareholders has previously made, constituted and appointed, and hereby irrevocably makes, constitutes and appoints ▇▇▇▇▇▇ as his agent and representative and attorney-in-fact (the "Shareholders' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to:
(a) Receive all notices or documents given or to be given to him by the Company pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder;
(b) Deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration;
(c) Sign and deliver to the Company at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder;
(d) Deliver to the Company at the Closing all certificates and documents to be delivered to the Company by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose;
(e) Engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions described herein as the Shareholders' Representative may deem appropriate; and
(f) Take such action on behalf of such Shareholders as the Shareholders' Representative may deem appropriate in respect of:
(i) Waiving any inaccuracies in the representations or warranties of the Company contained in this Agreement or in any document delivered by it pursuant hereto;
(ii) Waiving the fulfillment of any of the conditions precedent to the Shareholders' obligations hereunder;
(iii) Taking such other action as he is authorized to take under this Agreement;
(iv) Receiving all documents or certificates and making all determinations on behalf of the Shareholders required under this Agreement; and
(v) All such other matters as the Shareholders' Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations . The appointment of the Shareholders’ ' Representative set forth hereunder is irrevocable and is deemed coupled with an interest and any action taken by Shareholders' Representative pursuant to the authority granted in this Agreement Section 9.1 shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the Option Agreement, (ii) to give prior authority and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment agency of the Shareholders’ Representative for the accomplishment of, any or all ' Representative. Each of the foregoing. K Laser hereby accepts its appointment as Shareholders agree that the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as failure to consummate the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of transactions described herein or in connection with the acceptance or administration performance of his duties hereunder. No provision of this Agreement shall require except for the Shareholders’ Representative to expend ' Representative's fraud or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good bad faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Morgan Gary D), Stock Purchase Agreement (Win Gate Equity Group Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇. ▇. ▇. ▇▇▇▇▇ shall be constituted and appointed as agent (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”) for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) MegaSys Shareholders to give and receive notices and communications, (iii) to authorize delivery to Iveda of payments from the MegaSys Shareholders in satisfaction of claims by Iveda to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All actions of the Shareholders’ RepresentativeRepresentative shall be taken jointly, not individually. Such agency may be changed by the holders action of the MegaSys Shareholders holding a majority in interest of the shares of Everest MegaSys as of immediately prior to the Selling Parties Effective Time from time to time upon not less than ten (10) 10 days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIveda. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the MegaSys Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties MegaSys Shareholders shall severally (and not jointly)pro rata, according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their Pro Rata Portion, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about MegaSys and Iveda and the foregoing provisions in reasonable assistance of MegaSys’ and Iveda’s officers and employees for purposes of performing its duties and exercising its rights under this ARTICLE VIIIArticle IX, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about MegaSys or Iveda to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 2 contracts
Sources: Share Exchange Agreement (Iveda Solutions, Inc.), Share Exchange Agreement (Iveda Solutions, Inc.)
Shareholders’ Representative. (a) The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (such person and any successor or successors being the “Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Shareholders Representative”) shall act as the representative of the Selling Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders to take any and all actions required or permitted to be taken by the Selling Shareholders Representative under this Agreement and with respect to any claims (including the settlement thereof) made by a Investor Indemnified Party for indemnification pursuant to this Article VIII, with the authority including (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (ii) take all actions necessary or appropriate in the judgment of the Shareholders’ Selling Shareholders Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as In all matters relating to this Article VIII, the Shareholders’ Representative. Such agency may Selling Shareholders Representative shall be changed by the holders of a majority in interest of only party entitled to assert the shares of Everest rights of the Selling Shareholders, and the Selling Shareholders Representative shall perform all of the obligations of the Selling Shareholders under this Article VIII. The Investor Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Selling Shareholders Representative. The Selling Shareholders Representative may resign upon not less than twenty (20) business days’ prior written notice to Investors and the Selling Shareholders. The Selling Shareholders by the vote of a majority-in-interest of their respective Pro Rata Portions may remove the Selling Shareholders Representative from time to time upon not less than ten twenty (1020) business days’ prior written notice to all Investors. Any vacancy in the position of the Selling Parties and to Parent and Purchaser. No bond shall Shareholders Representative may be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each filled by a majority-in-interest of the Selling PartiesShareholders (based on their respective Pro Rata Portions), except for notices related subject to any action for the consent of the Investors (which consent shall not be unreasonably withheld, conditioned or delayed). Any successor Selling Shareholders Representative shall acknowledge in writing to the Investors his or her acceptance of his or her appointment as Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Shareholders Representative, including in electronic form.
(b) The Selling Shareholders shall be bound by all actions taken by the Selling Shareholders Representative in his capacity thereof, except for any action that conflicts with the limitations set forth in Section 8.05(d) below. The Selling Shareholders Representative shall promptly, and in any event within ten (10) business days, provide written notice to the Selling Shareholders of any action taken on behalf of them by the Selling Shareholders Representative pursuant to the authority delegated to the Selling Shareholders Representative under this Section 8.05. The Selling Shareholders Representative shall at all times act in his or her capacity as Selling Shareholders Representative in a manner that the Selling Shareholders Representative believes to be in the best interest of the Selling Shareholders’ . Neither the Selling Shareholders Representative nor any of his or her affiliates shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement, except in the case of his gross negligence, bad faith or willful misconduct. The Selling Shareholders Representative may consult with legal counsel, independent public accountants and other experts selected by him or her. The Selling Shareholders Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in this Agreement, the Selling Shareholders Representative shall not exercise any discretion or take any action.
(c) Each Selling Shareholder shall, severally and not jointly (based on his or her Pro Rata Portion), hold harmless and reimburse the Selling Shareholders Representative from and against such Selling Shareholder’s ratable share (based on his or her Pro Rata Portion) of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Selling Shareholders Representative arising out of or resulting from any action taken or omitted to be taken by the Selling Shareholders Representative under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Selling Shareholders Representative) arising out of or resulting from the Selling Shareholders Representative’s gross negligence, bad faith or willful misconduct; provided, however, that no such Selling Shareholder shall be liable in excess of an amount equal to the number of Special Shares sold by such Selling Shareholder to the Purchaser under Article I multiplied by the Per Share Price. The Selling Shareholders Representative shall not be liable entitled to any compensation for any act done or omitted hereunder as the Shareholders’ Representative while acting his services in good faith and without negligence and any act done or omitted pursuant such capacity.
(d) Notwithstanding anything to the advice of counsel contrary herein, the Selling Shareholders Representative, in his or her capacity as such, is not authorized to, and shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)not, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement accept on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and Shareholder any action taken by the Shareholders’ Representative based on consideration to which such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to Shareholder is entitled under this Agreement and the Option AgreementSelling Shareholders Representative, (ii) alters the consideration payable to in his or her capacity as such, shall not in any Selling Party pursuant to this Agreement or the Option Agreementmanner exercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Company now or hereafter owned of record or beneficially by any Selling PartiesShareholder unless the Selling Shareholders Representative is expressly authorized to do so in a writing signed by such Selling Shareholder.
Appears in 2 contracts
Sources: Class a Preferred Share Purchase Agreement (PointClickCare Corp.), Class a Preferred Share Purchase Agreement (PointClickCare Corp.)
Shareholders’ Representative. (a) The Selling PartiesImmediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, each AeroAstro Shareholder shall be deemed to have consented to and irrevocably constituted and appointed ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) to act as such AeroAstro Shareholder’s true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and ▇▇▇▇▇, in any and all capacities, to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by adopting this Agreement, including but not limited to: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof to the transactions AeroAstro Shareholders and others, as contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in by this Agreement and the Option Agreement, (ii) to give and receive notices and communications, ; (iii) receipt and forwarding of notices and communications pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect this Agreement; (iv) administration of the provisions of this Agreement and the Option Escrow Agreement; (v) giving or agreeing to, (iv) to retain legal counselon behalf of the AeroAstro Shareholders, accountantsany and all consents, consultants and other expertswaivers, and incur any other reasonable expensesamendments or modifications deemed by the Shareholders’ Representative, in connection withhis discretion, to be necessary or appropriate under this Agreement and to take all actions the execution or delivery of any documents that may be necessary or appropriate in the judgment connection therewith; (vi) subject to Delaware Law, amending this Agreement (other than this Section 1.12), or any of the instruments to be delivered to Radyne or Merger Sub pursuant to this Agreement; (vii) disputing or refraining from disputing, on behalf of the AeroAstro Shareholders’ Representative for the accomplishment of, any claim made by Radyne, Merger Sub or the Surviving Corporation under this Agreement and any and all agreements and documents required or contemplated by this Agreement (“Transaction Documents”); (viii) negotiating and compromising, on behalf of each such AeroAstro Shareholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents; (ix) executing, on behalf of each such AeroAstro Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; and (x) engaging attorneys, accountants, agents or consultants on behalf of the foregoingAeroAstro Shareholders in connection with the Transaction Documents and paying any fees related thereto. K Laser If, for any reason, ▇▇. ▇▇▇▇▇▇▇ is incapacitated or unable to act, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is hereby accepts its appointment appointed as his successor to act as the Shareholders’ Representative. Such agency may Radyne shall be changed entitled to send all notices to, and to rely upon all consents and approvals given, and all other actions taken by the holders incumbent Shareholders’ Representative until such time as Radyne receives actual notice of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) dayssuch Shareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative’s death or incapacity. No bond Radyne shall be required entitled to rely upon the response of the Shareholders’ RepresentativeRepresentative in all matters pertaining to the subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, or obtained from, the AeroAstro Shareholders. Notices or communications Notice to or from service upon the Shareholders’ Representative shall be deemed to Parent constitute good and sufficient notice or service upon all of the AeroAstro Shareholders for all matters, including without limitation, all notices of or demands for legal processes. Notwithstanding the foregoing, in the event that the Shareholders’ Representative, with the advice of counsel, is of the opinion that he requires further authorization or advice from the AeroAstro Shareholders on any matters concerning this Agreement or the Transaction Documents, the Shareholders’ Representative shall be entitled to seek such further authorization from the AeroAstro Shareholders prior to acting on their behalf. In such event, each AeroAstro Shareholder shall have a number of votes equal to the number of shares of AeroAstro Common Stock held by such AeroAstro Shareholder immediately prior to the Effective Time and the authorization of a majority of such number of votes shall be binding on all of the AeroAstro Shareholders and shall constitute notice to or from each the authorization of the Selling PartiesAeroAstro Shareholders.
(b) Immediately upon the adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders, the following provisions of this Section 1.12(b) shall be binding upon and enforceable against each AeroAstro Shareholder by the Shareholders’ Representative:
(i) Neither the Shareholders’ Representative nor any of AeroAstro’s directors, officers, agents or employees, if any, shall be liable to any AeroAstro Shareholder for any error of judgment, or any action taken, suffered or omitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, except for notices related in the case of his gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any action for which of the Selling Parties’ consent is required under the terms terms, covenants or conditions of this Agreement or applicable lawthe Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholders’ Representative shall not exercise any discretion or take any action. Each Selling Party agrees AeroAstro Shareholder shall indemnify and hold harmless and reimburse the Shareholders’ Representative from and against such AeroAstro Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Shareholders’ Representative arising out of or resulting from any action taken or omitted to receive correspondence be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, including in electronic form.bad faith or willful misconduct; and
(bii) The Shareholders’ Representative shall not be liable entitled to any fee, commission or other compensation for any act done or omitted the performance of his services hereunder but shall be entitled to the payment of all his expenses incurred as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant Representative. In connection with the foregoing, at the Closing, Radyne shall deliver to the advice Shareholders’ Representative, for the benefit of counsel shall the AeroAstro Shareholders, $150,000 of the Cash Consideration (the “Expense Fund”) by wire transfer of immediately available funds to an account designated in writing by the Shareholders’ Representative, to be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify used by the Shareholders’ Representative to pay expenses incurred by the Shareholders’ Representative in his capacity as the Shareholders’ Representative. Once the Shareholders’ Representative determines, in his sole discretion, that the Shareholders’ Representative will not incur any additional expenses in his capacity as the Shareholders’ Representative, the Shareholders’ Representative shall distribute the remaining unused Expense Fund, if any, pro rata to the AeroAstro Shareholders (less any amounts required to be withheld under foreign, federal, state or local laws). The AeroAstro Shareholders, including without limitation, the Shareholders’ Representative, acknowledge and hold it harmless against agree that neither Radyne nor AeroAstro shall have any lossliability regarding the allocation and distribution of the Expense Fund pursuant to this Section 1.12(b)(ii).
(iii) The foregoing Sections 1.12(b)(i) and (ii) represent an agreement solely among the AeroAstro Shareholders and the Shareholders’ Representative, liability and Sections 1.12(b)(i) and (ii) shall not be binding upon Radyne, Merger Sub or expense incurred AeroAstro.
(c) The adoption of this Agreement by the requisite vote or written consent of the AeroAstro Shareholders shall also be deemed to constitute approval by the AeroAstro Shareholders of all arrangements relating to the transactions contemplated hereby and to the provisions hereof binding upon the AeroAstro Shareholders, including, without gross negligence or bad faith on limitation, the part provisions of this Section 1.12, the Escrow Agreement and of all of the arrangements relating thereto, including the placement of the Escrow Amount in escrow, the appointment of the Shareholders’ Representative and arising out the provisions of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSection 8.2.
(cd) Notwithstanding the foregoing provisions in In this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative term “Per Share Expense Fund Amount” shall only have be the power or authority to act with respect to matters pertaining to Expense Fund divided by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way number of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesFully Diluted Shares.
Appears in 2 contracts
Sources: Merger Agreement (Radyne Corp), Merger Agreement (Radyne Corp)
Shareholders’ Representative. (a) The Each of the Shareholders hereby appoints and constitutes ▇▇▇ ▇▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) as its true and lawful agent and attorney-in-fact, with full power of substitution and resubstitution, to act for and on behalf of such Shareholder for the purpose of taking any and all actions by such Selling PartiesParty specified in or contemplated by this Agreement, by adopting including as agent and attorney-in-fact for such Shareholder (i) in connection with any amendment or waiver of any provision of this Agreement pursuant to Section 10.6; (ii) in connection with the receipt of all agreements, certificates and other documents to be delivered by Purchaser at the transactions contemplated herebyClosing pursuant to Section 2.2(b); (iii) for the purpose of giving and receiving notices on behalf of such Shareholder under this Agreement; and (iv) for the purpose of defending, compromising or settling all indemnity claims pursuant to Article 9, and conducting negotiations with Purchaser under this Agreement. The Shareholders’ Representative hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ Representative hereunder and agrees that he will not be entitled to any fee or other compensation for and on behalf the performance of the Selling PartiesShareholders’ Representative’s services hereunder.
(b) Any decision, with the authority (i) to perform the obligations act, consent or instruction of the Shareholders’ Representative set forth in under this Agreement will constitute a decision of each Shareholder and the Option Agreementwill be final, (ii) to give binding and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsconclusive upon each Shareholder, and incur Purchaser will be entitled to rely upon any other reasonable expensessuch decision, in connection withact, and to take all actions necessary consent or appropriate in the judgment instruction of the Shareholders’ Representative for as being the accomplishment ofdecision, act, consent or instruction of each Shareholder.
(c) The limited power of attorney granted hereby is coupled with an interest and will (i) survive and not be affected by the subsequent death, incapacity, disability, dissolution, termination or bankruptcy, as applicable, of any or all Shareholder, and (ii) extend to the successors, assigns, heirs, executors, administrators, legal representatives and beneficiaries, as applicable, of the foregoing. K Laser each Shareholder.
(d) Each Shareholder hereby accepts its appointment as agrees to indemnify, defend and hold harmless the Shareholders’ Representative. Such agency may be changed by Representative from and against any and all loss, liability or expense (including the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties reasonable fees and to Parent and Purchaser. No bond shall be required expenses of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b’s attorneys) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance any act or administration failure to act of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative hereunder, except to expend the extent that such loss, liability or risk its own funds expense is finally adjudicated to have been primarily caused by the gross negligence or otherwise incur any financial liability in the exercise or performance willful misconduct of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇▇▇▇ ▇▇▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent and attorney-in-fact (the "Shareholders Representative") for each Shareholder for and on behalf of the Selling Parties, with the authority Shareholders to (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (ii) authorize delivery to Cirrus of shares of Cirrus Common Stock from the Indemnity Fund in satisfaction of claims by Cirrus Indemnitees and object to such deliveries, (iii) authorize any and all actions on behalf of the Shareholders related to the payment or allocation of the Indemnity Fund, (iv) agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withcomply with orders of courts with respect to Losses, and to (v) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as foregoing or implementation of any provision of this Agreement for which the Shareholders’ Representative' Representative is authorized by the Shareholders, including, without limitation, to conduct, negotiate and settle any arbitration under Section 13.3 with respect to Losses. Such agency may be changed by the Shareholders from time to time upon not less than thirty (30) days prior written notice to Cirrus; provided that the Shareholders' Representative may not be removed unless holders of a majority in interest of the Indemnity Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of the Shareholders' Representative may be filled by approval of the holders of a majority in interest of the shares Indemnity Fund, provided that if the holders of Everest a majority in interest in the Indemnity Fund are not able fill a vacancy prior to the effective date of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all resignation or removal of the Selling Parties and to Parent and PurchaserShareholders Representative, then ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall act as the Shareholders' Representative, until a successor can be appointed in accordance with this Section 11.6(a). No bond shall be required of the Shareholders’ ' Representative, and the Shareholders' Representative shall not receive compensation for his services (although he will be reimbursed for reasonable costs and expenses in accordance with Section 11.6(e) below). Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding A decision, act, consent or instruction of the foregoing provisions Shareholders' Representative shall constitute a decision of all the Shareholders and shall be final, binding and conclusive upon each of them, and Cirrus, the Escrow Agent and any arbitrator handling disputes under this Article XI may rely upon any such decision, act, consent or instruction of the Shareholders' Representative as being the decision, act, consent or instruction of each Shareholder. Cirrus, the Escrow Agent and any arbitrator handling disputes under this Article XI are hereby relieved from any liability to any person for any acts done by them in this ARTICLE VIIIaccordance with such decision, act, consent or instruction of the Shareholders' Representative.
(d) No individual Shareholder may directly assert any of his, her, or its rights under this Article XI. Any rights to indemnification or defend any provision to the contrary set forth in this Agreement third party claims by a Shareholder must be asserted or the Option Agreement, conducted solely through the Shareholders’ Representative shall only have ' Representative.
(e) During the power or authority to act with respect to matters pertaining to Escrow Period (as defined in the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Escrow Agreement), Shareholders' Representative may be reimbursed up to $20,000 from the Escrow Fund for reasonable and actual expenses incurred by Shareholders' Representative in performing his duties hereunder and under the powers conferred on Escrow Agreement upon delivery of a certificate setting forth such expenses to the Escrow Agent and Cirrus. After the expiration of the Escrow Period, Shareholders’ ' Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative be reimbursed (but only after all amounts owed to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted Cirrus pursuant to this Article XI as implemented by Section 5.1 of the Escrow Agreement have been paid to Cirrus) for any additional reasonable and actual expenses for which Shareholders' Representative has not received reimbursement, prior to distribution of the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Escrow Funds to the nature of Shareholders in accordance with the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesEscrow Agreement.
Appears in 1 contract
Sources: Merger Agreement (Cirrus Logic Inc)
Shareholders’ Representative. Each Principal Shareholder hereby irrevocably constitutes and appoints Er▇▇ ▇▇▇▇ (a) The Selling Partiesthe “Shareholders’ Representative”), by adopting as such Principal Shareholder’s agent and attorney-in-fact, with full power and authority to act, including full power of substitution, in his, her or its name and on his, her or its behalf with respect to all matters arising from or in any way relating to this Agreement and any other agreement entered into in connection with this Agreement (including the transactions contemplated herebyAncillary Agreements) or the Transaction, hereby irrevocably appoint including to do all things and constitute K Laser to perform all acts required or deemed advisable, in its sole discretion, in connection with the Transaction as fully as such Principal Shareholder could if then personally present and acting alone. Without limitation, (i) any communication or other delivery validly delivered to the Shareholders’ Representative shall be deemed to have been validly delivered to each Principal Shareholder, (ii) any consent given or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement, by the Shareholders’ Representative shall be binding upon each and every Principal Shareholder, and (iii) except as otherwise provided in Section 11.1, the Shareholders’ Representative is hereby authorized to execute for and on behalf of the Selling Parties, each Principal Shareholder any amendment to this Agreement or any other agreement entered into in connection with the authority (i) to perform the obligations this Agreement. This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any Principal Shareholder or by operation of law. Neither the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and nor any agent employed by it shall incur any other reasonable expenses, in connection with, and Liability to take all actions necessary any Principal Shareholder by virtue of the failure or appropriate in the judgment refusal of the Shareholders’ Representative for any reason to consummate the accomplishment ofTransaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Principal Shareholders, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time jointly and severally, agree to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from indemnify the Shareholders’ Representative, including in electronic form.
his successors, assigns, agents, attorneys and affiliates (b) The the “Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Parties”) and to hold the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossand all losses, liability Liabilities or expense expenses incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the as Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in Representative, including the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reasonable costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithdefending against any claim or Liability in connection herewith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Mimvi, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Daqing Mao is hereby appointed as agent and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as attorney-in-fact for each of the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform enter into and deliver the obligations Escrow Agreement on behalf of each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give authorize or object to delivery to the Purchaser of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest each of the shares of Everest of the Selling Parties Shareholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Selling Parties and Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent and or Purchaser, as applicable. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares exercise of Everestreasonable business judgment. A decision, indemnify the Shareholders’ Representative and hold it harmless against any lossact, liability consent or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and arising out shall be final, binding and conclusive upon each of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as their Shareholders’ Representative and to act as their agent and attorney-in-fact for purposes of Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement, and consent to the taking by adopting this Agreement the Shareholders’ Representative of any and all actions and the transactions contemplated herebymaking of any decisions required or permitted to be taken by him pursuant to such provisions of this Agreement. The Shareholders’ Representative hereby agrees to negotiate, enter into settlements and compromises of claims, including third-party claims, to comply with orders of courts and awards of arbitrators with respect to such claims, resolve any claim made pursuant to Article 9 of this Agreement, take all actions necessary in his judgment for the accomplishment of the foregoing and hereby irrevocably appoint and constitute K Laser accepts his appointment as the Shareholders’ Representative for purposes of Article 1, Article 5, Article 8, Article 9 and on behalf Section 10.4 of this Agreement and for purposes of any claims under the Selling Parties, Remaining Shareholder Promissory Note and the Contingent Consideration Note. Parent and Purchaser shall be entitled to deal exclusively with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in on all matters relating to Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely conclusively (without further evidence of the Shareholders’ Representative. Notices any kind whatsoever) on any document executed or communications purported to or from the Shareholders’ Representative to Parent shall constitute notice to or from each be executed on behalf of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Seller by the Shareholders’ Representative, including in electronic formand on any other action taken or purported to be taken on behalf of any Seller by the Shareholders’ Representative, as fully binding upon such Seller.
(b) If the Shareholders’ Representative shall die, become disabled or otherwise be unable or declare himself unwilling to fulfill his responsibilities as agent of the Sellers, then the Selling Shareholders who held a majority of the Shares prior to the Closing collectively shall, within ten days after such time, appoint a successor representative reasonably satisfactory to Purchaser. The Shareholders’ Representative may be removed at any time, with or without cause, by the Selling Shareholders who held a majority of the Shares prior to the Closing; provided, that within ten days after such time, such Selling Shareholders shall appoint a successor representative reasonably satisfactory to Purchaser. Any such successor shall become the “Shareholders’ Representative” for purposes of Article 1, Article 5, Article 8, Article 9 and Section 10.4 of this Agreement and this Section 10.1.
(c) A Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to proportionate between themselves indemnify each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it each Shareholders’ Representative harmless against any loss, liability liability, cost or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his such Shareholders’ Representative’s duties hereunder. No provision pursuant to the terms of this Agreement Agreement, including the reasonable fees and expenses of any legal counsel retained by such Shareholders’ Representative.
(d) The Shareholders’ Representative shall require be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to him hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Shareholders’ Representative to expend be responsible for the validity or risk its own funds or otherwise incur any financial liability in the exercise or performance sufficiency of any of its powers, rights, duties or privileges this Agreement. In all questions arising under this Agreement on behalf of any Selling Parties. The Agreement, the Shareholders’ Representative may rely on the advice of counsel, and for anything done, omitted or suffered in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreementadvice, the Shareholders’ Representative shall only have the power or authority not be liable to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesanyone.
Appears in 1 contract
Sources: Share Purchase Agreement (Multi Fineline Electronix Inc)
Shareholders’ Representative. (a) The Selling PartiesUpon the approval of the Shareholders of this Agreement, by adopting for all purposes under this Agreement and the transactions contemplated herebyEscrow Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser designate A. ▇▇▇▇ ▇▇▇▇▇▇ to serve as the Shareholders’ sole and exclusive representative of the Shareholders (the “Shareholders Representative”) with respect to the matters set forth in this Agreement, and agree that Buyer and Escrow Agent shall be entitled to rely upon any actions taken by the Shareholders Representative for and as the duly authorized action of the Shareholders Representative on behalf of the Selling Parties, each Shareholder (other than any Dissenting Shareholder) with the authority (i) respect to perform the obligations of the Shareholders’ Representative any matters set forth in this Agreement and the Option Escrow Agreement. If A. ▇▇▇▇ ▇▇▇▇▇▇ at any time is unable, (ii) due to give incapacity or otherwise, to serve as Shareholders Representative, then ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall serve as successor Shareholders Representative. Each successor Shareholders Representative, if required to serve, shall sign an acknowledgement in writing agreeing to perform and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect be bound by all of the provisions of this Agreement and applicable to the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Shareholders Representative. Each successor Shareholders Representative for the accomplishment of, any or shall have all of the foregoing. K Laser hereby accepts its appointment power, authority, rights and privileges conferred by this Agreement upon the original Shareholders Representative, and the term “Shareholders Representative” as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond used herein shall be required of the Shareholders’ deemed to include any successor Shareholders Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Service by the Shareholders Representative shall not be liable without compensation except for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken reimbursement by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholders of out-of-pocket expenses specifically provided herein.
(c) Notwithstanding Each Shareholder hereby appoints and constitutes the foregoing provisions Shareholders Representative as his or its true and lawful attorney-in-fact, with full power in his name and to act on his or its behalf according to the terms of this ARTICLE VIIIAgreement. This power of attorney and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of Legal Requirement, whether by such Shareholder’s death, disability, protective supervision or any provision other event. The Shareholders Representative shall promptly deliver to each Shareholder any notice received by the Shareholders Representative concerning this Agreement.
(d) Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to any Shareholder relating to the contrary set forth in performance of such Shareholders Representative’s duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the Option Agreement, extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that the Shareholders’ actions taken or not taken by the Shareholders Representative constituted fraud or were taken or not taken in bad faith. The Shareholders Representative shall only be protected in acting upon any notice, statement or certificate believed by the Shareholders Representative to be genuine and to have been furnished by the power appropriate Person and in acting or authority refusing to act with respect to matters pertaining in good faith on any matter. Neither the Shareholders Representative nor any agent employed by the Shareholders Representative shall be liable to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not Buyer or any Affiliate of the Buyer by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision reason of this Agreement or the Option Agreement) that (i) results in the amounts payable performance of Shareholders Representative’s duties hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Shareholders’ Representative. ▇▇▇▇ ▇▇▇▇▇, (asuch Person ---------------------------- and any successor or successors being the "Shareholders' Representative") The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser shall act as the representative of the Shareholders’ Representative for , and shall be authorized to act on behalf of the Selling PartiesShareholders and to take any and all actions required or permitted to be taken by the Shareholders' Representative under this Agreement or the Escrow Agreement, with respect to any claims (including the settlement thereof) made by Parent or the Shareholders for indemnification pursuant to this Article IX of the Agreement and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of the Escrow Agreement. The Shareholders shall be bound by all actions taken by the Shareholders' Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.04. The Shareholders' Representative shall promptly, and in any event within five business days, provide written notice to the Shareholders of any action taken on their behalf by the Shareholders' Representative pursuant to the authority (i) delegated to perform the obligations Shareholders' Representative under this Section 9.04. The Shareholders' Representative shall at all times act in his or her capacity as Shareholders' Representative in a manner that the Shareholders' Representative believes to be in the best interest of the Shareholders’ . Neither the Shareholders' Representative set forth in nor any of its directors, officers, agents or employees shall be liable to any Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement and or the Option Escrow Agreement, (ii) to give and receive notices and communicationsexcept in the case of the Shareholders' Representative's gross negligence, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, accountants, consultants independent public accountants and other experts, experts selected by it and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done action taken or omitted hereunder as the Shareholders’ Representative while acting to be taken in good faith and without negligence and any act done or omitted pursuant to by it in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel, accountants or experts. The Selling Parties Shareholders' Representative shall severally (and not jointly), according have any duty to each Selling Parties’ pro-rata interest in ascertain or to inquire as to the shares performance or observance of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of terms, covenants or in connection with the acceptance or administration of his duties hereunder. No provision conditions of this Agreement shall require or the Shareholders’ Representative Escrow Agreement. As to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth matters not expressly provided for in this Agreement or the Option Escrow Agreement, the Shareholders’ ' Representative shall only have the power not be required to exercise any discretion or authority to act with respect to matters pertaining to the Selling Parties as a group take any action. Each Shareholder severally shall indemnify and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), hold harmless and the powers conferred on reimburse the Shareholders’ ' Representative herein from and in the Option Agreement shall not authorize against such Shareholder's ratable share of any and all liabilities, losses, damages, claims, costs or empower expenses suffered or incurred by the Shareholders’ ' Representative to do arising out of or cause resulting from any action taken or omitted to be done any action (including taken by amending, modifying or waiving any provision of the Shareholders' Representative under this Agreement or the Option Escrow Agreement) that (i) results , other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct. Notwithstanding anything to the contrary herein or in the amounts payable hereunder Escrow Agreement, (a) the Shareholders' Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to any Selling Party being distributed which such Shareholder is entitled under this Agreement and (b) the Shareholders' Representative shall not in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreementexercise, or (iii) adds seek to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubtexercise, any change to the nature of the indemnity obligations), in each case voting power whatsoever with respect to clauses (i), (ii) and (iii) shares of this Section 8.1(c), without first obtaining the prior written approval capital stock of the Selling PartiesCompany or Parent now or hereafter owned of record or beneficially by any Shareholder unless the Shareholders' Representative is expressly authorized to do so in a writing signed by such Shareholder. In all matters relating to this Article IX, the Shareholders' Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders' Representative shall perform all of the obligations of the Shareholders hereunder. Parent shall be entitled to rely on all statements, representations and decisions of the Shareholders' Representative.
Appears in 1 contract
Sources: Merger Agreement (Sonicwall Inc)
Shareholders’ Representative. (a) The Selling PartiesPerson identified on Company Schedule 13.15(a) (such Person, by adopting the “Shareholders’ Representative”) is hereby appointed as the representative of the shareholders of the Company to act on behalf of such shareholders with respect to the matters identified in this Agreement, and the Shareholders’ Representative has accepted the appointment as the Shareholders’ Representative pursuant to the execution and delivery to Guaranty and the Company of a Consent to Appointment dated as of the date of this Agreement.
(b) By approving this Agreement and the transactions contemplated herebyhereby or by executing the Transmittal Materials, hereby each holder of Company Stock shall have irrevocably appoint (a) authorized and constitute K Laser as appointed the Shareholders’ Representative for and as such shareholder’s representative to act on behalf of the Selling Partiesshareholder with respect to the matters set forth in this Agreement; and (b) agreed that the Shareholders’ Representative shall not be liable, with responsible or accountable in damages or otherwise to the authority (i) Company or any shareholders of the Company for any Liabilities incurred by reason of any error in judgment or any act or failure to perform act arising out of the obligations activities of the Shareholders’ Representative set forth on behalf or in respect of the shareholders of the Company, including (i) the failure to perform any acts he is not expressly obligated to perform under this Agreement and the Option Agreement, ; (ii) any acts or failures to give and receive notices and communicationsact made in good faith or on the advice of legal counsel, accountants or other consultants to the Shareholders’ Representative; or (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in matter beyond the judgment control of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable receive compensation for his services contemplated by this Agreement. If at any act done or omitted hereunder as time the Shareholders’ Representative while acting ceases to serve in good faith and without negligence and any act done such capacity due to his resignation, death or omitted pursuant to disability, the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest resulting vacancy in the shares position of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be filled by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPersons (or their heirs or successors) that held immediately prior to Closing a majority of the shares of Company Stock.
Appears in 1 contract
Sources: Merger Agreement (Guaranty Bancorp)
Shareholders’ Representative. 2.1 In order to administer efficiently (ai) The Selling Partiesthe implementation of the Agreement by the Shareholders, by adopting this Agreement and (ii) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (iii) the settlement of any dispute with respect to the Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser designate ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as their representative (the "Shareholders' Representative").
2.2 The Shareholders hereby authorize the Shareholders’ ' Representative for and (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Selling PartiesShareholders, with the authority (i) waiver of any condition to perform the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawAgreement. Each Selling Party agrees Such authorization granted by the shareholders to receive correspondence from the Shareholders’ Representative' Representative shall remain effective until December 31, including in electronic form1998.
2.3 In the event (bi) The that the Shareholders’ ' Representative dies, becomes legally incapacitated or resigns from such position, or (ii) upon a written consent executed by at least 66 2/3% in interest (calculated based on the allocation set for in Schedule 1.2 hereof, notwithstanding any subsequent change in shareholdings by way of sale, etc.) of the Shareholders, the Shareholders may designate a replacement to the Shareholders' Representative; however, no change in the Shareholders' Representative shall not be liable for any act done or omitted hereunder as effective until SPSS is given notice of it by the Shareholders’ .
2.4 All decisions and actions by the Shareholders' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence binding upon all of such good faith the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of negligence. The Selling Parties shall severally (and not jointly)fraud, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part willful misconduct of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision ' Representative.
2.5 By their execution of this Agreement Agreement, the Shareholders agree that:
(i) SPSS shall require be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend any actions required or risk its own funds permitted to be taken by the Shareholders or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against SPSS for any action taken by SPSS in reliance upon the instructions or decisions of the Shareholders’ ' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative based on such reliance shall be deemed conclusively conclusive and binding upon all of the Shareholders; no Shareholder shall have any cause of action against SPSS or In2itive for any action taken or omitted to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIbe taken, decision made or omitted to be made or any provision instruction given or omitted to be given by the contrary set forth in Shareholders' Representative; and no Shareholder shall have any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power except for fraud, gross negligence or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual willful breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or by the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' Representative;
(iii) adds to or results in an increase of remedies available at law for any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature breach of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c)2.5 are inadequate; therefore, SPSS shall be entitled to temporary and permanent injunctive relief without first obtaining the prior written approval necessity of proving damages if SPSS brings an action to enforce the Selling Partiesprovisions of this Section 2.5; and
(iv) the provisions of this Section 2.5 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders to the Shareholders' Representative and shall be binding upon the executors, heirs, legal representatives and successors of each Shareholder.
Appears in 1 contract
Sources: Stock Purchase Agreement (SPSS Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement M▇. ▇. ▇. ▇▇▇▇▇ shall be constituted and appointed as agent (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”) for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) MegaSys Shareholders to give and receive notices and communications, (iii) to authorize delivery to Iveda of payments from the MegaSys Shareholders in satisfaction of claims by Iveda to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All actions of the Shareholders’ RepresentativeRepresentative shall be taken jointly, not individually. Such agency may be changed by the holders action of the MegaSys Shareholders holding a majority in interest of the shares of Everest MegaSys as of immediately prior to the Selling Parties Effective Time from time to time upon not less than ten (10) 10 days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIveda. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the MegaSys Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties MegaSys Shareholders shall severally (and not jointly)pro rata, according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their Pro Rata Portion, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding The Shareholders’ Representative shall have reasonable access to information about MegaSys and Iveda and the foregoing provisions in reasonable assistance of MegaSys’ and Iveda’s officers and employees for purposes of performing its duties and exercising its rights under this ARTICLE VIIIArticle IX, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about MegaSys or Iveda to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholder Representative shall, by adopting this Agreement virtue of the Merger, be appointed attorney-in-fact and the transactions contemplated herebyauthorized and empowered to act, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of any or all of Company Shareholders (with full power of substitution in the Selling Partiespremises), in connection with the authority provisions of Article IX as they relate to Company and Company Shareholders generally, and such other matters as are reasonably necessary for the consummation of the transactions contemplated hereby including, without limitation, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcompromise on their behalf with Parent any claims asserted thereunder, (ii) to give execute and receive notices and communicationsdeliver on behalf of Company Shareholders any documents or agreements contemplated by or necessary or desirable in connection with this Agreement, (iii) to agree to, negotiate, enter into administer and provide amendments and supplements resolve any disputes with respect to and waivers in respect the computation of this Agreement any adjustments to the Purchase Price and the Option Agreement, Purchase Notes and (iv) to retain legal counsel, accountants, consultants take such further actions including coordinating and other experts, administering post-closing matters related to the rights and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment obligations of Company Shareholders (including exchanges of the Shareholders’ Representative for Purchase Notes) as are authorized in this Agreement (the accomplishment ofabove named representative, as well as any or all subsequent representative of the foregoing. K Laser hereby accepts its appointment Company Shareholders appointed by Company Shareholders being referred to herein as the “Shareholders’ Representative”). Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for to any act done Company Shareholder, Parent, the Surviving Corporation or their respective Affiliates or any other Person with respect to any action taken or omitted hereunder as to be taken by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the his role as Shareholders’ Representative and hold it harmless against any lossunder or in connection with this Agreement unless such action or omission results from or arises out of fraud, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative. Parent, Merger Sub and the Surviving Corporation shall be entitled to rely on such appointment and treat such Shareholders’ Representative as the duly appointed attorney-in-fact of each Company Shareholder. Each Company Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote and arising out of or without any further action, and each Company Shareholder who receives Merger Consideration in connection with the Merger, by acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur thereof and without any financial liability in the exercise or performance of any of its powersfurther action, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements confirms such appointment and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithauthority.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective upon and pursuant to this Agreement, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative shall be hereby appointed as the representative of the holders of Company Stock and as the attorney-in-fact and agent for and on behalf of the Selling Parties, each holder of Company Stock solely with respect to any claims by any Indemnified Party under Article 8 or Article 9 of this Agreement. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the authority (i) to perform the obligations of take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative set forth in under this Agreement and the Option Agreement, including the exercise of the power to (iii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, commence any suit, action or proceeding, and supplements to and waivers in comply with orders of courts with respect to, claims by any Indemnified Party under Article 8 or Article 9 of this Agreement and the Option Agreement, and (ivii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as The Shareholders’ Representative will have sole authority and power to act on behalf of each former shareholder of the Company with respect to the disposition, settlement or other handling of all claims for indemnification under this Agreement and all related rights or obligations of the former shareholders of the Company arising under this Agreement. The Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to the Shareholders’ Representative. Such agency may be changed by , to keep the holders of a majority in interest former shareholders of the shares of Everest Company reasonably informed with respect to actions of the Selling Parties from time Shareholders’ Representative pursuant to time upon not less than ten (10) daysthe authority granted the Shareholders’ prior Representative under this Agreement. Each former shareholder of the Company shall promptly provide written notice to the Shareholders’ Representative of any change of address of such shareholder.
(b) In all matters relating to the disposition, settlement or other handling of claims pursuant to Article 8 under this Agreement, the Shareholders’ Representative (or his or her successor) shall be the only party entitled to assert the rights of the Selling Parties former shareholders of the Company. A decision, act, consent or instruction of the Shareholders’ Representative hereunder shall constitute a decision, act, consent or instruction of all former holders of Company Stock and to Parent and Purchaser. No bond shall be required final, binding and conclusive upon each of such shareholders, and Parent may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each and every such holder of Company Stock. Parent shall be relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(bc) The Shareholders’ Representative shall not have the right to recover from payments due on the Note, prior to any distribution to Trust, the Shareholders’ Representative’s reasonable out-of-pocket expenses incurred in serving in that capacity (the “Shareholders’ Representative’s Expenses”). In the event outstanding payments on the Note are insufficient to satisfy the Shareholders’ Representative’s Expenses, then each Shareholder will be liable obligated to pay a percentage of the Shareholders’ Representative’s Expenses in excess of such funds proportionate to that holder’s percentage ownership of the Company Stock.
(d) The Shareholders’ Representative will incur no liability with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by such Shareholders’ Representative to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any act done other action or omitted hereunder as inaction, except his own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement, the Shareholders’ Representative while acting may rely on the advice of outside counsel, and the Shareholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith and without negligence and any act done or omitted pursuant to by the advice Shareholders’ Representative based on such advice.
(e) The holders of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties Company Stock shall severally (and but not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, jointly indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct, to the extent permitted by applicable law, on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(f) At any time during the Survival Period, a majority-in-interest of holders of Company Stock may, by written consent, appoint a new representative as the Shareholders’ Representative. No provision Notice together with a copy of this Agreement shall require the written consent appointing such new representative and bearing the signatures of holders of a majority-in-interest of those holders must be delivered to Parent not less than ten (10) calendar days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent
(g) In the event that the Shareholders’ Representative becomes unable or unwilling to expend continue in his or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The capacity as Shareholders’ Representative may in good faith rely conclusively upon the informationRepresentative, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by if the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding resigns as a Shareholders’ Representative, a majority-in-interest of the foregoing provisions in this ARTICLE VIIIholders of Company Stock may, or any provision to the contrary set forth in this Agreement or the Option Agreementby written consent, appoint a new representative as the Shareholders’ Representative shall only have Representative. Notice and a copy of the power or authority to act with respect to matters pertaining to written consent appointing such new representative and bearing the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way signatures of limitation, an action against an individual Selling Party for his, her or its individual breach the holders of a covenant in this Agreement), and majority-in-interest of such holders must be delivered to Parent. Such appointment will be effective upon the powers conferred on later of the Shareholders’ Representative herein and date indicated in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement consent or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesdate such consent is received by Parent.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Each Indemnifying Party by virtue of the approval and adoption of this Agreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, appointed and empowered the Shareholders’ Representative, for the benefit of the Indemnifying Parties, by adopting this Agreement as the exclusive agent and attorney-in-fact to act for and on behalf of each Indemnifying Party, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on an Indemnifying Party) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Shareholders’ Representative, to enforce and protect the rights and interests of the Indemnifying Parties and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement, the Exchange Agent Agreement, and the other agreements, documents and instruments executed in connection herewith and the transactions provided for herein and therein, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement and the other agreements, documents and instruments executed in connection herewith for and on behalf of the Selling Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the authority Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by CHC, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Indemnifying Parties, and receive process on behalf of any or all Indemnifying Parties in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Shareholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as the Shareholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Shareholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to perform refrain from enforcing any right of the obligations Indemnifying Parties arising out of or under or in any manner relating to this Agreement and the other agreements, documents and instruments executed in connection herewith; provided, however, that no such failure to act on the part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Shareholders’ Representative set forth or by the Indemnifying Parties unless such waiver is in a writing signed by the waiving Party or by the Shareholders’ Representative; (iv) 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 Shareholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and the Option Agreementother agreements, documents and instruments executed in connection herewith; (iiv) to give engage special counsel, accountants and receive notices other advisors and communicationsincur such other expenses on behalf of the Indemnifying Parties in connection with any matter arising under this Agreement and the other agreements, documents and instruments executed in connection herewith; and (iiivi) to agree tocollect, negotiatehold and disburse any amounts, enter into and provide amendments and supplements including any portion of the Escrow Shares received by Shareholders’ Representative pursuant to and waivers the terms hereof in respect accordance with the terms of this Agreement and the Option Agreementother agreements, (iv) to retain legal counsel, accountants, consultants documents and other experts, and incur any other reasonable expenses, instruments executed in connection withherewith. Notwithstanding the foregoing, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for may resign at any time by providing written notice of intent to resign to the accomplishment ofIndemnifying Parties, any which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or all (B) the appointment of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed a successor by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserIndemnifying Parties. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from By executing this Agreement, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to Parent shall constitute notice to or from each act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under Indemnifying Parties in accordance with the terms of this Agreement or applicable law. Each Selling Party and (y) agrees to receive correspondence from the Shareholders’ Representativeperform its obligations under, including in electronic formand otherwise comply with, this Section 10.6.
(b) The Shareholders’ Representative shall not be liable entitled to receive reimbursement from, and be indemnified by, the Indemnifying Parties for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any act done or omitted hereunder as of the powers conferred upon the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally hereunder, (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify i) the Shareholders’ Representative shall incur no responsibility whatsoever to any Indemnifying Parties by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith (ii) the Shareholders’ Representative shall be entitled to rely on the part advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Shareholders’ Representative pursuant to such advice shall in no event subject the Shareholders’ Representative to liability to any Indemnifying Parties. Each Indemnifying Party shall indemnify, severally in proportion to its Pro Rata Share and not jointly, the Shareholders’ Representative against all Losses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acceptance acts or administration omissions of his duties the Shareholders’ Representative hereunder. No provision The foregoing indemnification shall not apply in the event of this Agreement shall require any action or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance Indemnifying Parties as to the existence of a deficiency toward the payment of any such indemnification amount, each Indemnifying Party shall promptly deliver to the Shareholders’ Representative full payment of its powers, rights, such Indemnifying Party’s share of the amount of such deficiency in proportion to such Indemnifying Party’s Pro Rata Share. The Shareholders’ Representative shall only have the duties or privileges under expressly stated in this Agreement on behalf of any Selling Partiesand shall have no other duty, express or implied. The Shareholders’ Representative may in good faith engage attorneys, accountants and other professionals and experts at the cost and expense of the Indemnifying Parties.
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing Date and/or any termination of this Agreement.
(d) CHC and the Company shall have the right to rely conclusively upon all actions taken or omitted to be taken by the Shareholders’ Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the informationIndemnifying Parties.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, reportsincompetency, statements bankruptcy or liquidation of any Indemnifying Party and opinions prepared or presented by counsel or other professionals retained by it(ii) shall survive the consummation of the Share Purchase, and any action taken by the Shareholders’ Representative based on such reliance pursuant to the authority granted in this Agreement shall be deemed conclusively to have been taken in good faitheffective and absolutely binding on each Indemnifying Party notwithstanding any contrary action of or direction from such Indemnifying Party, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(cf) Notwithstanding Each of SKS and CHC acknowledges and agrees that the foregoing provisions in this ARTICLE VIII, or any provision Shareholders’ Representative is a party to the contrary set forth in this Agreement or solely to perform certain administrative functions in connection with the Option Agreementconsummation of the transactions contemplated hereby. Accordingly, each of SKS and CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a Shareholder (if applicable), the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)no liability to, and the powers conferred on shall not be liable for any Losses of, any of SKS or CHC or to any Person in connection with any obligations of the Shareholders’ Representative herein and under this Agreement or otherwise in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision respect of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementtransactions contemplated hereby, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change except to the nature extent such Losses shall be proven to be the direct result of fraud by the indemnity obligations), Shareholders’ Representative in each case connection with respect to clauses (i), (ii) and (iii) the performance by the Shareholders’ Representative of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.its obligations hereunder
Appears in 1 contract
Sources: Share Purchase Agreement (ComSovereign Holding Corp.)
Shareholders’ Representative. (a) The Selling PartiesC▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (such person and any successor or successors being the “Shareholders’ Representative”) shall act as the representative of the Company Series A Preferred Holders, and shall be authorized to act on behalf of the Company Series A Preferred Holders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for and on behalf indemnification pursuant to this Article IX (including, without limitation, the exercise of the Selling Parties, with the authority power to (i) to perform authorize the obligations right of the Shareholders’ Representative setoff set forth in this Agreement and the Option AgreementSection 9.5 in satisfaction of claims by a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect to any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article IX, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Series A Preferred Holders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Company Series A Preferred Holders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Company Series A Preferred Holders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall not be liable for promptly, and in any act done or omitted hereunder as event within ten (10) business days, provide written notice to the Company Series A Preferred Holders of any action taken on behalf of them by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according authority delegated to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossunder this Section 9.6. The Shareholders’ Representative shall at all times act in his, liability her or expense incurred without gross negligence or bad faith on the part of its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative and arising out believes to be in the best interest of or in connection with the acceptance or administration of his duties hereunderCompany Series A Preferred Holders. No provision of this Agreement shall require Neither the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of nor any of its powersdirectors, rightsofficers, duties agents or privileges employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement on behalf Agreement, except in the case of any Selling Partiesits gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may in good faith rely conclusively upon the informationconsult with legal counsel, reports, statements independent public accountants and opinions prepared or presented by counsel or other professionals retained experts selected by it.
(c) Each Company Series A Preferred Holder shall indemnify and hold harmless and reimburse the Shareholders’ Representative from and against such Company Series A Preferred Holder’s ratable share of any and all liabilities, and losses, damages, claims, costs or expenses suffered or incurred by the Shareholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Shareholders’ Representative based on under this Agreement, other than such reliance shall be deemed conclusively to have been taken in good faithliabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence, bad faith or willful misconduct.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision anything to the contrary set forth in this Agreement or the Option Agreementherein, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and is not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such Company Shareholder is entitled under this Agreement (other than to take delivery and hold in trust on behalf of the powers conferred on Company Series A Preferred Holders the Promissory Note and any replacement thereof) and the Shareholders’ Representative herein and in the Option Agreement shall not authorize in any manner exercise, or empower seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Shareholder unless the Shareholders’ Representative is expressly authorized to do or cause to be done any action (including so in a writing signed by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch Company Shareholder.
Appears in 1 contract
Sources: Merger Agreement (DemandTec, Inc.)
Shareholders’ Representative. The rights of the Escrow Participants to receive disbursements from the Escrow Fund pursuant to the Escrow Agreement shall be subject to the right of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (athe “Shareholders’ Representative”) The Selling Parties, to take any and all actions and make any and all decisions sd-625790 required or permitted to be taken or made by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf under this Agreement or the Escrow Agreement, including the exercise of the Selling Parties, with the authority right to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, communications under Article 8 or the Escrow Agreement; (ii) authorize delivery to Parent of Parent Common Stock from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to claims for indemnification made by Parent under Article 8; (iv) agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with court orders with respect to and waivers in respect claims for indemnification made by Parent under Article 8; (v) undertake any defense of this Third-Party Claims; (vi) amend or waive the Escrow Agreement and the Option Agreement, (ivvii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as The identity of the Shareholders’ Representative may be changed, and a successor Shareholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Shareholders’ Representative. Such agency may be changed ) by Escrow Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and any such successor shall succeed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) daysShareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except be reimbursed for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence costs and expenses (including overhead expenses) incurred in such capacity from the Shareholders’ RepresentativeRepresentative Reimbursement Amount. From and after the Effective Time, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done a decision, act, consent or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithfinal, binding and conclusive upon each Escrow Participant.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Avista Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative as their agent and attorney-in-fact, as their sole representative for and on behalf of the Selling PartiesShareholders and to receive and distribute cash payments, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) and otherwise in satisfaction of indemnification claims by any Indemnified Party pursuant to this Article VIII, to object to such payments, to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any Indemnified Party and any Indemnifying Party, in each case relating to and waivers in respect of this Agreement and or the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withTransactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. K Laser hereby accepts its appointment as the The Shareholders’ Representative. Such agency Representative may not be changed by removed other than with the holders consent of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserShareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for its services. Notices Other than in connection with any claim pursued by an Indemnified Party directly against a Shareholder, notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders.
(b) A decision, act, consent or instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including an amendment, extension or waiver of any provision of this Agreement pursuant to Section 9.4 (Extension; Waiver) and Section 10.10 (Amendment and Modification) and shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders, and Purchaser may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of the Shareholders. Purchaser is hereby relieved from any liability to any person for any acts done by it in electronic formaccordance with such decision, act, consent or instruction of the Shareholders’ Representative.
(bc) The Shareholders’ Representative shall not distribute or cause to be liable for distributed, in each case in accordance with the Distribution Schedule: (i) to each Shareholder the portion of the Adjusted Cash Consideration payable to such Shareholder in respect of such Shareholder’s Company Shares, pursuant the Distribution Schedule; and (ii) any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant other monies that may be distributed to the advice Shareholders after the Closing on account of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally their Company Shares.
(and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. d) The Shareholders’ Representative may in good faith rely conclusively and act upon any statement, report or opinion prepared by or any advice received from the informationauditors, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by professional advisors of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, Representative. Absent fraud or any provision to the contrary set forth in this Agreement or the Option Agreementwillful misconduct, the Shareholders’ Representative shall only have not be responsible or held liable, in each case to any Shareholders for any loss or damage resulting from so relying or from acting in accordance with this Agreement as the power or authority Shareholders’ Representative. Each Shareholder agrees (i) to act with respect to matters pertaining to the Selling Parties as a group jointly and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), severally indemnify and the powers conferred on hold harmless the Shareholders’ Representative herein and its officers, directors and security holders from and against any and all losses, claims, damages, costs, expenses (including, without limitation, legal fees and expenses on a full indemnity basis) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Shareholders’ Representative may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in the Option Agreement shall not authorize respect thereof) arise out of, in any way relate to, or empower result from its acting as Shareholders’ Representative hereunder and (ii) to reimburse the Shareholders’ Representative to do and its officers, directors and security holders upon demand for all legal or cause to be done any action (including by amendingother expenses, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results if any, incurred in connection with its acting as Shareholders’ Representative, other than in the amounts payable hereunder to any Selling Party being distributed case of fraud, gross negligence or willful misconduct, provided that the Shareholders’ Representative has acted in any manner other than as permitted pursuant to compliance with this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Share Purchase Agreement (Marrone Bio Innovations Inc)
Shareholders’ Representative. (a) The Selling PartiesPerson identified on Company Schedule 13.15(a) (such Person, by adopting the “Shareholders’ Representative”) is hereby appointed as the representative of the shareholders of the Company to act on behalf of such shareholders with respect to the matters identified in this Agreement, and the Shareholders’ Representative has accepted the appointment as the Shareholders’ Representative pursuant to the execution and delivery to Guaranty and the Company of a Consent to Appointment dated as of the date of this Agreement.
(b) By approving this Agreement and the transactions contemplated herebyhereby or by executing the Transmittal Materials, hereby irrevocably appoint each holder of Company Stock shall have irrevocably: (a) authorized and constitute K Laser as appointed the Shareholders’ Representative for and as such shareholder’s representative to act on behalf of the Selling Partiesshareholder with respect to the matters set forth in this Agreement; and (b) agreed that the Shareholders’ Representative shall not be liable, with responsible or accountable in damages or otherwise to the authority (i) Company or any shareholders of the Company for any Liabilities incurred by reason of any error in judgment or any act or failure to perform act arising out of the obligations activities of the Shareholders’ Representative set forth on behalf or in respect of the shareholders of the Company, including: (i) the failure to perform any acts he or she is not expressly obligated to perform under this Agreement and the Option Agreement, ; (ii) any acts or failures to give and receive notices and communicationsact made in good faith or on the advice of legal counsel, accountants or other consultants to the Shareholders’ Representative; or (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in matter beyond the judgment control of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable receive compensation for his services contemplated by this Agreement. If at any act done or omitted hereunder as time the Shareholders’ Representative while acting ceases to serve in good faith and without negligence and any act done such capacity due to his resignation, death or omitted pursuant to disability, the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest resulting vacancy in the shares position of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be filled by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPersons (or their heirs or successors) that held immediately prior to Closing a majority of the shares of Company Stock.
Appears in 1 contract
Sources: Merger Agreement (Guaranty Bancorp)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Mr. ▇▇▇ ▇▇▇▇ ▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Partiesall Shareholders as their attorney-in-fact and representative, with the authority (i) to perform do any and all things and to execute any and all documents or other papers, in each such Shareholder’s name, place and stead, in any way in which each such Shareholder could do if personally present, in connection with this Agreement and the obligations applicable Transaction Documents and the transactions contemplated hereby and thereby, and (ii) to amend, cancel or extend, or waive the terms of, this Agreement and any of the Transaction Documents in a manner that would not disproportionately affect such Shareholder as compared to the other Shareholders, The power of attorney granted hereby is coupled with an interest. The Shareholders shall be bound by all actions taken and documents executed by the Shareholders’ Representative set forth in this Agreement pursuant hereto, and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Investor shall be required entitled to rely on any action or decision of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall may, by giving not be liable for any act done or omitted hereunder less than thirty (30) days written notice to the other Parties, resign as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to under this Agreement. In the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify event that the Shareholders’ Representative becomes unable or unwilling to continue in his capacity as the Shareholders’ Representative under this Agreement, the Shareholders shall (by majority-in-interest) promptly appoint a successor Shareholders’ Representative by written notice to the Investor, and the appointment of such successor Shareholders’ Representative shall become effective only upon the Investor’s receipt of such written notice. Each Shareholder hereby agrees that any successor Shareholders’ Representative so selected by such Shareholder shall be entitled to act as such under this Agreement on behalf of such Shareholder. All references herein to the Shareholders’ Representative shall include any such successor Shareholders’ Representative. Except as otherwise expressly set forth herein, each Shareholder hereby consents to the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by such Shareholders under this Agreement. The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his capacity as the Shareholders’ Representative.
(c) In performing the functions specified in this Agreement, the Shareholders’ Representative shall not be liable to any Shareholder in the absence of gross negligence or willful misconduct on the part of the Shareholders’ Representative. Each Shareholder shall severally and not jointly, indemnify and hold it harmless the Shareholders’ Representative from and against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur , including any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements out-of-pocket costs and opinions prepared or presented by counsel or expenses and legal fees and other professionals retained by it, and any action taken legal costs reasonably incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Shareholder Agreement (China BCT Pharmacy Group, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the execution of this Agreement by the Sellers, and the transactions contemplated herebywithout further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby irrevocably appoint accepts such appointment) as agent and constitute K Laser as the attorney-in-fact (“Shareholders’ Representative Representative”) for and on behalf of the Selling PartiesSellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the authority (i) name, place and stead of each Seller with respect to perform Section 2.4 and the obligations of Escrow Agreement and the taking by the Shareholders’ Representative set forth in this Agreement of any and all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of be taken by the Shareholders’ Representative for under Section 2.4 and the accomplishment of, Escrow Agreement (it being understood that the Sellers shall have no right to pursue any or all claim on behalf of any Company Indemnified Party in respect of the foregoingrights granted to Company Indemnified Parties under Section 7.1). K Laser hereby accepts its appointment as The power of attorney granted in this Section 13.1(a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ RepresentativeRepresentative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) days’ prior written notice to all including in the event of the Selling Parties death, disability or other incapacity of a Shareholders’ Representative that is an individual), and to Parent and Purchaserany such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. Notices At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or communications obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to or the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to Parent shall constitute notice to or from each expend any of the Selling Partiesamounts held in the Shareholders’ Representative Expense Fund (though, except for notices related the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any action for which costs or expenses or expend any amount in excess of amounts held in the Selling PartiesShareholders’ consent is required under Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement, any amount that the Shareholders’ RepresentativeRepresentative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, including financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in electronic formconnection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall require be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesRepresentative. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall not be liable for, and shall be indemnified by the Sellers for, any action liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively pursuant to have been taken in good faiththe terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) Notwithstanding From and after the foregoing provisions in Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have treat confidentially any nonpublic information about the power or authority to act Company (except in connection with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not performance by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein of its duties or the exercise of its rights under this Agreement).
(d) From and in after the Option Agreement shall not authorize Closing, a decision, act, consent or empower instruction of the Shareholders’ Representative to do shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or cause to be done instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed Person for any acts done by Buyer in accordance with any manner other than as permitted pursuant to this Agreement and the Option Agreementsuch decision, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy voting in favor of or consenting to the Merger or by surrendering or delivering to the Paying Agent or the Company (or its designee payroll service provider), by adopting as applicable, an executed Letter of Transmittal to the Paying Agent, in exchange for the consideration to be paid in accordance with this Agreement, each Company Holder irrevocably approves the depositing of the funds held in the Shareholders’ Representative Fund and the constitution and appointment of, and hereby irrevocably constitutes and appoints Shareholder Representative Services LLC as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Company Holders and each of them (the “Shareholders’ Representative”) with respect to any and all matters relating to, arising out of, or in connection with, this Agreement, the Paying Agent Agreement or any agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of each Company Holder hereunder to:
(i) execute and deliver all amendments, waivers, ancillary agreements, certificates and documents that the Shareholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated herebyby this Agreement or the Paying Agent Agreement, hereby irrevocably or in connection with any of the matters set forth in clauses (ii) through (xi) of this Section 2.9(a);
(ii) following the Closing, amend any terms of this Agreement related to the Development Milestone Events and the associated payment amounts and timing thereof, Buyer’s obligation to develop and seek Marketing Approval of MT1621 and the Development Milestone Review Committee’s rights to information related to the Development Milestone Events;
(iii) receive funds, make payments of funds and give receipts for funds;
(iv) do or refrain from doing any further act or deed on behalf of the Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as the Company Holders could do if personally present;
(v) administer the defense or settlement of any disputes regarding the Closing Cash Payment adjustment pursuant to Section 2.12 and agreeing to or negotiating the Final Closing Statement and Final Closing Cash Payment;
(vi) administer the defense or settlement of any disputes regarding any Contingent Payments pursuant to Section 2.13;
(vii) contest any claims for indemnification pursuant to Section 8.1, to deliver any Claim Dispute Notice pursuant to Section 8.4, and to administer the defense or settlement of any such claims for indemnification, and of any disputes with respect thereto;
(viii) give any written direction to the Paying Agent;
(ix) give or receive notices to be given or received by the Company Holders under this Agreement, or the Paying Agent Agreement (except to the extent that this Agreement, or the Paying Agent Agreement expressly contemplates that any such notice shall be given or received by each Company Holder individually);
(x) receive service of process in connection with any claims under this Agreement or the Paying Agent Agreement; and
(xi) take any other action that, pursuant to the express terms hereof, is to be (or which may be taken by) the Shareholders’ Representative. All actions, notices, communications and determinations by or on behalf of the Company Holders shall be given or made by the Shareholders’ Representative and all such actions, notices, communications and determinations by the Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all Company Holders, and no Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the rights and obligations of the Company, Buyer and Merger Sub under this Agreement, the Shareholders’ Representative shall be entitled to: (i) rely upon the Estimated Closing Statement, Allocation Schedule, the Transaction Expense Schedule, and the CoC Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Holder.
(b) The Shareholders’ Representative may resign at any time. If the Shareholders’ Representative resigns, dies or becomes legally incapacitated, then a majority of the Company Holders, based on their respective Pro Rata Percentages, shall promptly designate in writing to Buyer a single Person to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or the Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint and constitute K Laser a Shareholders’ Representative hereunder. A majority of the Company Holders, based on their respective Pro Rata Percentages, may also replace the Person serving as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time and for any reason upon not less than at least ten (10) days’ prior written notice to Buyer.
(c) The Shareholders’ Representative shall act for the Company Holders on all of the Selling Parties matters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be in the best interest of the Company Holders. The Shareholders’ Representative is authorized to act on behalf of the Company Holders notwithstanding any dispute or disagreement among the Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be authorized thereunto. The Shareholders’ Representative undertakes to perform such duties and to Parent only such duties as are specifically set forth in this Agreement and Purchaser. No bond no implied covenants or obligations shall be required of read into this Agreement against the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Holders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Fund and (ii) the Escrow Fund, any Development Milestone Payment or any Royalty Payment, in each case only at or after such time as remaining amounts would otherwise be distributable to the Company Holders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or risk incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Company Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise incur applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. Except for this Agreement and the Shareholders’ Representative engagement letter, the Shareholders’ Representative has not entered into any financial liability Contract, arrangement or understanding with the Company or any Company Holder, and the Company Holders do not have any requirements, prerequisites or veto rights in connection with the exercise or performance of any Shareholders’ Representative’s fulfillment of its powers, rights, duties obligations or privileges exercise of its rights under this Agreement on behalf of any Selling Parties. other than as set forth in such engagement letter.
(d) The Shareholders’ Representative shall treat confidentially any nonpublic information disclosed to it pursuant to this Agreement and shall not use such nonpublic information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any nonpublic information disclosed to it pursuant to this Agreement to anyone except as required by Law; provided that (i) the Shareholders’ Representative may disclose such nonpublic information to legal counsel and other advisors under an obligation of confidentiality and non-use in good faith rely conclusively upon its capacity as such (for the informationpurpose of advising the Company Holders on any information disclosed to such Shareholders’ Representative pursuant to this Agreement), reports, statements and opinions prepared (ii) the Shareholders’ Representative (or presented by legal counsel or other professionals retained advisor to whom information is disclosed pursuant to clause (i) above) may disclose such nonpublic information disclosed to the Shareholders’ Representative pursuant to this Agreement in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Shareholders’ Representative may disclose to employees, advisors, agents or consultants of the Shareholders’ Representative and to any Company Holder (in each case who have a need to know such information and who are subject to confidentiality obligations with respect thereto) any such nonpublic information disclosed to the Shareholders’ Representative.
(e) Buyer shall be entitled to rely on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of the Company Holders for all purposes under this Agreement and shall have no Liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative. Each Company Holder, by itvoting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent or the Company (or its designee payroll service provider), as applicable, along with an executed Letter of Transmittal hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative based on in the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.9, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such reliance shall be deemed conclusively to have been taken in good faithCompany Holder.
(cf) Notwithstanding At the foregoing provisions Closing, Buyer shall pay the Shareholders’ Representative Fund Amount to the Shareholders’ Representative, which shall be maintained by the Shareholders’ Representative in this ARTICLE VIIIa segregated account (the aggregate amount of cash so held by the Shareholders’ Representative from time to time, the “Shareholders’ Representative Fund”). The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any provision other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Fund and the Company Holders irrevocably transfer and assign to the contrary set forth Shareholders’ Representative any ownership right that they may have in this Agreement any interest that may accrue on funds held in the Shareholders’ Representative Fund. The Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Option AgreementShareholders’ Representative Fund other than as a result of its bad faith, gross negligence or willful misconduct. For Tax purposes, the Shareholders’ Representative Fund shall only have be treated in accordance with Section 5.1(f). The Shareholders’ Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the power or authority to act with respect to matters pertaining to performance of its duties (including the Selling Parties as a group reasonable fees and not matters pertaining to an individual Selling Party (for example but not by way expenses of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in counsel) under this Agreement), and the powers conferred on Agreement from the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower Fund; provided that if the Shareholders’ Representative Fund is insufficient to do or cause pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from the Company Holders on a several basis (and not a joint and several basis) according to their respective Pro Rata Percentages.
(g) Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Fund is to be done distributed to the Company Holders, (i) the Shareholders’ Representative shall calculate the amount to be distributed to the Company Holders after (A) payment of all of the Shareholders’ Representative’s out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative and (B) deduction of the Employer Tax Amount payable on or triggered by such payment of the portion of such amount to be paid to the Company Award Holders by the Surviving Corporation with the amount in clause (B) to be calculated iteratively, (ii) deposit with the Paying Agent such portion of the resulting amount payable to the Company Holders other than the Company Award Holders, and (iii) pay to the Surviving Corporation such portion of the resulting amount payable to the Company Award Holders plus the Employer Tax Amount calculated in clause (i)(B) above. The Paying Agent and the Surviving Corporation, as applicable, shall make payments to the Company Holders pursuant to the Allocation Schedule, less any action applicable Tax withholding required by applicable Law; provided, however, than such amounts payable to the Company Award Holders shall in no event be paid more than five years following the Closing Date. Any portion of the Shareholders’ Representative Fund that remains undeliverable or unclaimed after twelve (12) months of the initial delivery attempt (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity by Law) shall become, to the extent permitted by Law, including by amendingany abandoned property, modifying escheat or waiving similar Law, the property of Buyer, free and clear of any provision claims or interest of any Person previously entitled thereto. The Shareholders’ Representative Fund shall not be available to Buyer to satisfy any claims in connection with this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiestransactions contemplated hereby.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Shareholder Representative Services LLC as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementagreements ancillary hereto, including, but not limited to, (iii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties shares of Company Capital Stock (on an as converted to Ordinary Shares and Ordinary A Shares basis) outstanding immediately prior to Parent the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Ordinary Shares and PurchaserOrdinary A Shares basis) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement Agreement. Upon the Closing, the Company will wire US$30,000 (the “Expense Fund”) to the Shareholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Chardan Healthcare Acquisition Corp.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Shareholders' Representative shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Parties, with the authority (i) Target shareholders to perform the obligations of take any and all actions required or permitted to be taken by the Shareholders’ ' Representative set forth in with respect to any claims made by an Acquiror Indemnified Party pursuant to this Agreement and the Option AgreementSection 8, (ii) including to give and receive notices and communications, (iii) to authorize delivery to Acquiror of the Acquiror Common Stock or other property from the Escrow Fund in satisfaction of claims by Acquiror, to object to such deliveries, to make claims on behalf of the Target shareholders, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and 50 awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) 10 days’ ' prior written notice to all of the Selling Parties and to Parent and PurchaserAcquiror. No bond shall be required of the Shareholders’ ' Representative, and the Shareholders' Representative shall receive no compensation for his services. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formTarget shareholders.
(b) The Shareholders’ ' Representative shall provide written notice to the Target shareholders of any material action taken on behalf of them by the Shareholders' Representative pursuant to the authority delegated to the Shareholders' Representative under this Section 8. The Shareholders' Representative shall not be liable to any person for any act done error of judgment, or any action taken, suffered or omitted hereunder to be taken under this Agreement (including Section 5.13) or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Shareholders’ ' Representative while acting in good faith shall not exercise any discretion or take any action. Each Target shareholder shall indemnify and without negligence hold harmless and reimburse the Stockholders' Representative from and against such Target shareholders' ratable share of any act done and all liabilities, losses, damages, claims, costs or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify expenses suffered or incurred by the Shareholders’ ' Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and resulting from any action taken or omitted to be taken by the Shareholders’ ' Representative based on under this Agreement (including Section 5.13) or the Escrow Agreement, other than such reliance shall be deemed conclusively to have been taken in good faithliabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders' Representative's gross negligence, bad faith or willful misconduct.
(c) Notwithstanding The Shareholders' Representative shall have reasonable access to information about Target and the foregoing provisions in this ARTICLE VIIIreasonable assistance of Target's officers and employees for purposes of performing his duties and exercising his rights hereunder, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group treat confidentially and not matters pertaining disclose any nonpublic information from or about Target to an individual Selling Party anyone (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of except on a covenant in this Agreementneed to know basis to individuals who agree to treat such information confidentially), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective upon the execution of this Agreement, by adopting this Agreement and the transactions contemplated hereby, ▇▇▇ ▇▇▇▇▇▇ is hereby irrevocably appoint and constitute K Laser appointed as the agent and attorney-in-fact (the “Shareholders’ Representative”) for each Shareholder. The Shareholders’ Representative shall be authorized, for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of all the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to and waivers in respect of claims for indemnification under this Agreement and the Option Agreement, (iv) to retain legal counselauthorize payment to or from the claims of Ducommun with regard to the Purchase Price Adjustment and/or any claims for indemnification under this Agreement, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withincluding but not limited to the authorization to reduce the amount due under the Promissory Note, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of to accomplish the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive compensation for his services. All of the expenses of the Shareholders’ Representative shall be borne by the Shareholders on a pro rata basis. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related Shareholders. The Shareholders’ Representative may be changed to any action for which another Principal Shareholder by the Selling Partiesvote of a majority of the members of the Board of Directors of Miltec as of the day prior to the Closing Date whereupon the new Shareholders’ consent is required under Representative shall give at least ten (10) days prior notice to Ducommun of his or her becoming the terms new Shareholders’ Representative and the removal of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the old Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in its capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done in the exercise of reasonable judgment or omitted pursuant to upon the advice of counsel shall be conclusive evidence of such good faith and absence of negligencelegal counsel. The Selling Parties Shareholders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative harmless against any losses incurred by the Shareholders’ Representative (including reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend Representative’s duties hereunder unless such losses directly result from the gross negligence, willful misconduct or risk its own funds or otherwise incur any financial liability in the exercise or performance bad faith of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIAny decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group and not matters pertaining to an individual Selling Party (for example but not by way decision of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)all Shareholders, and the powers conferred on shall be final, binding and conclusive upon each of such Shareholder, and Ducommun may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative herein as being the decision, act, consent or instruction of each and every such Shareholder. Ducommun is hereby relieved from any Liability to any person for any acts done by it in the Option Agreement shall not authorize accordance with such decision, act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Ducommun Inc /De/)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. 11.11.1. By virtue of the execution of this Agreement, each Consideration Recipient herby irrevocably agrees, constitutes and appoints ▇▇▇ ▇▇▇▇▇▇▇▇ as the true, exclusive and lawful agent and attorney in fact of the Consideration Recipients (ai) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser to act as the Shareholders’ Representative for and on behalf of the Selling PartiesConsideration Recipients and to have the right, with the power and authority (i) to perform all actions (or refrain from taking any actions) the obligations of the Shareholders’ Shareholder’s Representative set forth shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement and the Option Agreementtransactions contemplated herein (the “Transaction”), (ii) to give act in the name, place and receive notices stead of each Consideration Recipient (A) in connection with the Transaction, in accordance with the terms and communicationsprovisions of this Agreement, and (B) in any Claim involving this Agreement, and (iii) to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the Transaction (including any Transaction Document). Without derogating from the generality of the above, the Shareholders’ Representative shall have the right, power and authority to act for the Consideration Recipients in connection with indemnification to be provided under Section 9 and to agree to, negotiate, and enter into settlements, adjustments and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expensescomply with orders of courts and awards of arbitrators with respect to, in connection withsuch claims, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoingforegoing or (ii) specifically mandated or permitted by the terms of this Agreement. K Laser hereby accepts its appointment as The Consideration Recipients will be bound by all actions taken by Shareholders’ Representative in connection with the Transaction Documents. The Shareholders’ Representative may resign at any time; provided, that the Shareholders’ Representative. Such agency Representative may not be changed removed unless a majority of the Consideration Recipients (as determined by the vote of the majority holders of the shares issued herein) agree in writing to such removal and that a new substituted Shareholders’ Representative is being appointed (whose identity shall be determined by such then majority of Consideration Recipients, as determined by the vote of the holders of the majority of the BiomX shares issued herein). A vacancy (including by way of a Deemed Resignation) in the position of the Shareholders’ Representative may be filled by a majority in interest of the Consideration Recipients (as determined by the vote of the majority holders of the shares issued herein) and subject to Purchaser’s approval of Everest of the Selling Parties from time such successor Shareholders’ Representative, not to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserbe unreasonably withheld or delayed. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for its services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Consideration Recipients. The Consideration Recipients shall cause a Person to be appointed promptly as the Shareholders’ Representative if at any time there is no Person serving as the Shareholders’ Representative for any reason.
11.11.2. A decision, act, consent or instruction of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative an amendment, extension or waiver of the Transaction Documents, shall not be liable for any act done or omitted hereunder as constitute a decision of all the Shareholders’ Representative while acting in good faith Consideration Recipients and without negligence and any act done or omitted pursuant to the advice of counsel shall be final, binding and conclusive evidence of upon the Consideration Recipients. Purchaser is entitled to rely upon any such good faith and absence of negligence. The Selling Parties shall severally (and not jointly)decision, according to each Selling Parties’ pro-rata interest in the shares of Everestact, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability consent or expense incurred without gross negligence or bad faith on the part instruction of the Shareholders’ Representative and arising out as being the decision, act, consent or instruction of all the Consideration Recipients. The Purchaser is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, act, consent or in connection with the acceptance or administration instruction of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint and constitute K Laser ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., a Shareholder, to serve as the Shareholders’ Representative for and on behalf representative of all of the Selling Parties, with Shareholders from and after the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect date of this Agreement and (the Option Agreement"Shareholders' Representative"). EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY- IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, (iv) WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to retain legal counsel, accountants, consultants and other expertsrely, and incur any other reasonable expensesshall be fully protected in relying, in connection with, and to take upon all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ ' Representative. The Shareholders' Representative may not be changed without the consent of Purchaser, except as provided in the next sentence. In the event of the death of the Shareholder' Representative, the Shareholders shall promptly irrevocably appoint by a majority vote of the Shareholders (based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision stock ownership immediately prior to the contrary set forth in this Agreement Closing) one of the remaining Shareholders (or the Option Agreement, beneficial owners of Shareholders that are entities) who is a natural person to act as the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Company and the transactions contemplated hereby, its shareholders party hereto hereby irrevocably constitute and appoint and constitute K Laser TC Group VI, L.P., as the Shareholders’ Representative and as the true and lawful agent and attorney-in-fact of such holders of Company Common Shares and Options with full power and authority to act, including full power of substitution, in their name and on their behalf with respect to all matters arising from or in any way relating to this Agreement and the Transactions contemplated hereby and thereby, to:
(i) represent, act for and on behalf of, and bind each of such holders of Company Common Shares and Options in the Selling Partiesperformance of all of their obligations arising from or relating to this Agreement, with including the authority (i) execution and delivery of any certificate or document required under this Agreement to perform the obligations of be delivered by the Shareholders’ Representative at the Closing;
(ii) give and receive notices and receive service of process under or pursuant to this Agreement and the other Transaction Documents;
(iii) waive any conditions to Parent and Merger Sub’s obligation to close pursuant to Section 6.3;
(iv) address claims for indemnification pursuant to Article VIII;
(v) give and receive notices and communications in respect of indemnification claims under this Agreement to be recovered against the Indemnification Escrow Funds and authorize payment to any Parent Indemnitee from the Indemnification Escrow Funds in satisfaction of any indemnification claims hereunder by any Parent Indemnitee;
(vi) amend this Agreement pursuant to Section 9.3; and
(vii) perform any and all other duties and acts contemplated to be performed by the Shareholders’ Representative as set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formTransaction Documents.
(b) The Company hereby agrees that for any action arising under this Agreement relating to the holders of Company Common Shares and Options, such holders of Company Common Shares and Options may be served legal process by registered mail to the address of the Shareholders’ Representative shall not be liable for any act done or omitted hereunder to such other address as the Shareholders’ Representative while acting may from time to time give written notice to Parent, and that service in good faith and without negligence and any act done or omitted pursuant to the advice of counsel such manner shall be conclusive evidence adequate and sufficient in all respects for any legal purpose, and that such holders of Company Common Shares or Options will raise no defense or claim in any court in any jurisdiction that service in such good faith manner was not adequate or sufficient. This appointment of agency and absence this power of negligence. The Selling Parties attorney is coupled with an interest and shall severally (be irrevocable and shall not jointly)be terminated by the holders of Company Common Shares and Options or by operation of law, according to each Selling Parties’ pro-rata interest in whether by the shares of Everestdissolution, indemnify liquidation or bankruptcy or any company, partnership or other entity or the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance occurrence of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itevent, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to as valid as if such death, incapacity, termination, dissolution, liquidation, bankruptcy or other event had not occurred, regardless of whether or not the Shareholders’ Representative shall have been taken in good faithreceived any notice thereof. The Shareholders’ Representative hereby accepts such appointment.
(c) Notwithstanding Any decision, act, consent or instruction of the foregoing provisions Shareholders’ Representative shall constitute a decision of such holders of Company Common Shares and Options and shall be conclusive and binding upon such holders of Company Common Shares and Options, and Parent may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of such holders of Company Common Shares and Options. The Shareholders’ Representative cannot be changed or substituted without the prior written consent of a majority of the holders of Company Common Shares and Options and such change or substitution of the Shareholders’ Representative shall not be effective until Parent receives written notice thereof.
(d) At Closing, pursuant to Section 2.2(b), Parent will deposit the Shareholders’ Representative Expense Amount into the Shareholders’ Representative Expense Account, as a fund for any payments or distribution to any Person (as determined in this ARTICLE VIIIthe reasonable discretion of the Shareholders’ Representative) (each, a “Payment” and collectively, the “Payments”) and the costs, fees, expenses (including legal fees and expenses) and liabilities of the Shareholders’ Representative incurred (or any provision reasonably expected to be incurred) on behalf of or for the contrary set forth benefit of the Former Holders on or after the Closing Date in connection with this Agreement or any other Transaction Document (including the Option liabilities described in this Section 9.13). The Shareholders’ Representative shall have the sole discretion to withdraw funds from the Shareholders’ Representative Expense Amount at any time (and without prior notice to any Person) to fund a Payment and/or the costs, fees and expenses (including legal fees and expenses) that it incurs on behalf of the Former Holders. In the event that the Shareholders’ Representative Expense Amount is exhausted or shall be insufficient to satisfy such Payment and/or such costs, fees and expenses of the Shareholders’ Representative, the Shareholders’ Representative shall, at its election, be entitled to either recover (on a dollar for dollar basis) any such expenses or other losses directly from the Former Holders (on a several basis (and not joint and several basis) based on such Former Holder’s Allocable Share) or be reimbursed for any such costs, fees, expenses or losses out of any amounts otherwise being distributed to the Former Holders out of the Shareholders’ Representative Expense Account in accordance with the terms of the Paying Agent Agreement. On the later to occur of (i) the date that the Shareholders’ Representative determines in its sole discretion that it will not make any Payments and/or incur any further costs, fees, expenses or losses in his capacity as Shareholders’ Representative and (ii) the second anniversary of the Effective Time, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way distribute any remaining portion of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in Expense Amount (such amount the Option Agreement shall not authorize or empower the “Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option AgreementRemainder Amount”) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesFormer Holders based on such Former Holder’s Allocable Share.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, In order to administer the transactions contemplated by adopting this Agreement and the transactions contemplated herebyEscrow Agreement, including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, the Shareholders hereby irrevocably designate and appoint the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ as their representative for this Agreement and constitute K Laser the Escrow Agreement and as the Shareholders’ Representative attorney-in- fact and agent for and on behalf of each Shareholder (in such capacity, the Selling Parties"Shareholder Representative"). Said power of attorney shall be coupled with an interest and shall be irrevocable.
(b) Each Shareholder hereby authorizes the Shareholder Representative to represent each Shareholder, and theirs successors, with respect to all matters arising under this Agreement and the authority Escrow Agreement, including, without limitation, (i) to perform take all action necessary in connection with the indemnification obligations of the Shareholders’ Representative set forth in this Agreement Shareholders under Section 5.03, including, the defense or settlement of any claims and the Option Agreementmaking of payments with respect thereto, (ii) to give and receive all notices required to be given under this Agreement or the Escrow Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken Shareholders by the Shareholders’ Shareholder Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Escrow Agreement.
(c) In the event that the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ or any substitute Shareholder Representative becomes unable to perform its responsibilities as Shareholder Representative or resigns from such position, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ shall select another representative to fill such vacancy and such substituted Shareholder Representative shall be deemed to be the Shareholder Representative for all purposes of this Agreement and the Escrow Agreement. Upon the occurrence of such event, the Shareholders shall provide written notice to the Parent, the Buyer and the Escrow Agent and shall indicate the identity of the substitute Shareholder Representative, who shall have agreed to the terms of this Section as if he, she or it were a party hereto.
(iid) alters All decisions and actions by the consideration payable Shareholder Representative, including, without limitation, any agreement between the Shareholder Representative and the Buyer, the Parent or the Escrow Agent relating to the indemnification obligations of the Shareholders under Section 5.03, including, the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all the Shareholders as if they had taken such action themselves, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholder Representative shall incur no liability to the Shareholders with respect to any Selling Party pursuant action taken or suffered by the Shareholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by it to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Shareholder Representative's own willful misconduct or negligence. The Shareholder Representative may, in all questions arising under this Agreement or the Option Escrow Agreement, rely on the advice of counsel, and for anything done, omitted or (iii) adds to or results suffered in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for good faith by the avoidance of doubt, any change Shareholder Representative shall not be liable to the nature Shareholders.
(e) The Buyer, the Company, the Parent and the Escrow Agent are hereby authorized to rely conclusively on the actions, instructions and decisions of the indemnity obligations), in each case Shareholder Representative with respect to clauses (i)this Agreement and the Escrow Agreement, (ii) including, without limitation, the indemnification obligations of the Shareholders under Section 5.03, including the defense or settlement of any claims or the making of payments by the Shareholder Representative hereunder, and (iii) no party hereunder shall have any cause of action against the Buyer, the Company, the Parent or the Escrow Agent to the extent such parties have relied upon the actions, instructions or decisions of the Shareholder Representative. If the Shareholder Representative undertakes any action hereunder in his capacity as a Shareholder Representative, the Shareholder Representative shall be deemed to make a representation to each of the Buyer, the Company, the Parent and the Escrow Agent that the Shareholder Representative is authorized hereunder to undertake such action. The Shareholder Representative agrees to indemnify and hold harmless each of the Buyer, the Company, the Parent and the Escrow Agent, and each of their respective successors, assigns, officers, directors, stockholders, affiliates, employees, representatives and other agents, from and against any and all claims, liabilities, taxes, losses, damages or injuries, together with costs and expenses, including reasonable legal fees suffered by such party as a result of the reliance by such party on the actions of the Shareholder Representative hereunder. The Shareholders hereby confirm that the Escrow Agent is an intended third party beneficiary of the terms of this Section 8.1(c), without first obtaining and may enforce such Section in its own right and name.
(f) The Shareholders acknowledge and agree that the prior written approval Shareholder Representative may incur costs and expenses on behalf of the Selling PartiesShareholders in his capacity as Shareholder Representative. Each of the Shareholders agrees to pay the Shareholder Representative, promptly upon demand by the Shareholder Representative therefor, a percentage of any expenses equal to such Shareholder's ownership interest in the Company immediately prior to the Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement G▇▇▇▇ ▇▇▇▇▇▇▇▇▇ hereby is irrevocably constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Shareholders and each of them (“Shareholders’ Representative for Representative”) with respect to any and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree all matters relating to, negotiatearising out of, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, or in connection with, the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), including for purposes of taking any action or omitting to take action on behalf of Shareholders thereunder. All actions, notices, communications and determinations by or on behalf of Shareholders under such documents shall be given or made by Shareholders’ Representative and all actions necessary or appropriate in the judgment such actions, notices, communications and determinations by Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall will not be liable to any Shareholder for any act done taken or omitted hereunder by it as the permitted under this Agreement, except if such act is taken or omitted in bad faith or by willful misconduct. The Shareholders’ Representative while acting will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith and without negligence and any act done or omitted pursuant believes to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegenuine (including facsimiles thereof). The Selling Parties shall Shareholders agree, severally (and but not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative for, and to hold it the Shareholders’ Representative harmless against against, any loss, liability or expense incurred without gross negligence willful misconduct or bad faith on the part of the Shareholders’ Representative and Representative, arising out of or in connection with the acceptance or administration Shareholders’ Representative’s carrying out its duties as representative for the Shareholders under this Agreement, including costs and expenses of his duties hereunder. No provision of this Agreement shall require successfully defending the Shareholders’ Representative to expend or risk its own funds or otherwise incur against any financial claim of liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partieswith respect thereto. The Shareholders’ Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith rely conclusively upon and in accordance with the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on opinion of such reliance shall be deemed conclusively to have been taken in good faithcounsel.
(c) Notwithstanding If Shareholders’ Representative dies or becomes legally incapacitated, then those other Shareholders holding a majority of the foregoing provisions Shares as of the date hereof promptly shall designate in this ARTICLE VIIIwriting to Parent a single individual to replace the deceased or legally incapacitated Shareholders’ Representative as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or Shareholders so fail to designate a successor Shareholders’ Representative, or any provision to the contrary set forth in this Agreement or the Option Agreement, then Parent may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. If the Shareholders’ Representative becomes unable or unwilling, for any reason, to serve as representative for the Shareholders, such other Person or Persons as may be designated by Shareholders holding a majority of the voting interests of the Company Preferred Stock immediately prior to the Closing, shall only have succeed the power Shareholders’ Representative as the representative of the Shareholders in all matters under this Agreement and the transactions contemplated hereby.
(d) Without limiting the generality of the foregoing, Shareholders’ Representative is designated as the sole and exclusive agent, representative and attorney-in-fact for Shareholders for all purposes related to this Agreement (including (i) service of process upon Shareholders, (ii) executing and delivering to Parent or authority to act any other Person on behalf of any of or all Shareholders any and all instruments, certificates, documents and agreements with respect to matters pertaining the transactions contemplated by the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), and any other instrument, certificate, document or agreement referred to in Section 8.02, and (iii) receipt of all notices on behalf of Shareholders with respect to any matter, suit, claim, action or proceeding arising with respect to the Selling Parties sale of the Shares or any transaction contemplated by the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters), including the defense, settlement or compromise of any claim, action or proceeding pursuant to Article X), and Shareholders may act, with respect to all matters under the Transaction Documents (other than the Lock-up Agreements and Employment Offer Letters), only through the Shareholders’ Representative. Parent shall be entitled to rely on the authority of the Shareholders’ Representative as a group the agent, representative and not matters pertaining attorney-in-fact of Shareholders for all purposes under the Transaction Documents (other than the Trading Restriction Agreements and the Employment Offer Letters) and shall have no liability for any such reliance. None of Shareholders may revoke the authority of Shareholders’ Representative. Each Shareholder hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by Shareholders’ Representative in the exercise of the power-of-attorney granted to Shareholders’ Representative pursuant to this Section 2.15, which power-of-attorney, being coupled with an individual Selling Party interest, is irrevocable and shall survive the death, incapacity or incompetence of such Shareholder. Any payment made to Shareholders’ Representative pursuant to any of the Transaction Documents (for example but not by way of limitationother than the Trading Restriction Agreements and the Employment Offer Letters) shall be deemed to have been made to Shareholders. Promptly after receiving any such payment, an action against an individual Selling Party for Shareholders’ Representative shall deliver to each Shareholder his, her or its individual breach pro rata portion of a such payment. Without limiting the foregoing, Shareholders hereby covenant in this Agreement)and agree to defend, indemnify and hold harmless the powers conferred on members of the Parent Indemnified Group from and against any Losses arising out of any claim that Shareholders’ Representative herein and in the Option Agreement shall not authorize failed to distribute to Shareholders (or empower the properly allocate among them) any payments received by Shareholders’ Representative to do or cause to be done any action under the Transaction Documents (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement the Trading Restriction Agreements and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligationsEmployment Offer Letters), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Liveperson Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the execution of this Agreement by the Sellers, and the transactions contemplated herebywithout further action of any Seller, each Seller shall be deemed to have irrevocably constituted and appointed GSH (and by execution of this Agreement it hereby irrevocably appoint accepts such appointment) as agent and constitute K Laser as the attorney-in-fact (“Shareholders’ Representative Representative”) for and on behalf of the Selling PartiesSellers (in their capacity as shareholders of the Company), with full power of substitution, to act in the authority (i) name, place and stead of each Seller with respect to perform Section 2.4 and the obligations of Escrow Agreement and the taking by the Shareholders’ Representative set forth in this Agreement of any and all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of be taken by the Shareholders’ Representative for under Section 2.4 and the accomplishment of, Escrow Agreement (it being understood that the Sellers shall have no right to pursue any or all claim on behalf of any Company Indemnified Party in respect of the foregoingrights granted to Company Indemnified Parties under Section 7.1). K Laser hereby accepts its appointment as The power of attorney granted in this
Section 13.1 (a) is coupled with an interest and is irrevocable, may be delegated by the Shareholders’ RepresentativeRepresentative and shall survive the sale, transfer, merger, reorganization, bankruptcy, liquidation, dissolution, death or incapacity of each Seller. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Escrow Fund from time to time upon not less than ten (10) days’ prior written notice to all including in the event of the Selling Parties death, disability or other incapacity of a Shareholders’ Representative that is an individual), and to Parent and Purchaserany such successor shall succeed the Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for its services. Notices At any time from the Closing Date until payment of any remaining amounts in the Shareholders’ Representative Expense Fund in accordance with Section 2.4(c)(i), the amount of documented costs and expenses (including all fees and disbursements of counsel, financial advisors and accountants) incurred by the Shareholders’ Representative in connection with the performance of its rights or communications obligations under this Agreement and the taking of any and all actions in connection therewith, shall be paid to or the Shareholders’ Representative from the Shareholders’ Representative Expense Fund. In connection with the performance of its rights and obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith, the Shareholders’ Representative shall not be required to Parent shall constitute notice to or from each expend any of the Selling Partiesamounts held in the Shareholders’ Representative Expense Fund (though, except for notices related the avoidance of doubt, it may do so at any time and from time to time in its sole discretion) and in no event shall the Shareholders’ Representative be required to incur any action for which costs or expenses or expend any amount in excess of amounts held in the Selling PartiesShareholders’ consent is required under Representative Expense Fund. Notwithstanding the foregoing, (i) the Shareholders’ Representative may retain in the Shareholders’ Representative Expense Fund, in accordance with the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from Agreement, any amount that the Shareholders’ RepresentativeRepresentative deems in its reasonable discretion to be necessary to satisfy any documented costs and expenses (including all fees and disbursements of counsel, including financial advisors and accountants) incurred or to be incurred by the Shareholders’ Representative in electronic formconnection with the performance of its rights or obligations under this Agreement and the Escrow Agreement and the taking of any and all actions in connection therewith and (ii) to the extent that funds are no longer available in the Shareholders’ Representative Expense Fund, the Shareholders’ Representative shall have recourse against each Seller directly for such costs and expenses (it being understood that and agreed that any such recourse shall be against each Seller, severally and not jointly, in accordance with the percentage of the aggregate Purchase Price received by or attributable to such Seller as of such date).
(b) The Shareholders’ Representative shall not be liable to any Person for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his its duties hereunder. No provision of under this Agreement and the Escrow Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall require be conclusive evidence of such good faith and reasonable judgment), except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such Person as a proximate result of the fraud or bad faith of the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesRepresentative. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall not be liable for, and shall be indemnified by the Sellers for, any action liability, loss, damage, penalty, or fine incurred by the Shareholders’ Representative (and any cost or expense incurred by the Shareholders’ Representative in connection therewith) arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, or fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative Expense Fund shall be available to indemnify and hold the Shareholders’ Representative harmless against any liability, loss, damage, penalty, fine, cost or expense incurred by the Shareholders’ Representative arising out of or in connection with the acceptance or administration of its duties under this Agreement and the Escrow Agreement, except to the extent that any such liability, loss, damage, penalty, fine, cost or expense is the proximate result of the fraud or bad faith of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Shareholders’ Representative in connection with actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively pursuant to have been taken in good faiththe terms of Section 2.4 or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Shareholders’ Representative Expense Fund.
(c) Notwithstanding From and after the foregoing provisions in Closing, Buyer shall cause the Company to provide the Shareholders’ Representative with reasonable access to information about the Company and the reasonable assistance of the officers and employees of Buyer and the Company for purposes of performing its duties and exercising its rights under this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, provided that the Shareholders’ Representative shall only have treat confidentially any nonpublic information about the power or authority to act Company (except in connection with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not performance by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein of its duties or the exercise of its rights under this Agreement).
(d) From and in after the Option Agreement shall not authorize Closing, a decision, act, consent or empower instruction of the Shareholders’ Representative to do shall constitute a decision of all the Sellers and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Buyer may rely upon any decision, act, consent or cause to be done instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Seller. Buyer is hereby relieved from any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder liability to any Selling Party being distributed Person for any acts done by Buyer in accordance with any manner other than as permitted pursuant to this Agreement and the Option Agreementsuch decision, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Purchaser for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Purchaser of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall require not include costs (other than third party expenses) incurred by the Shareholders’ Representative in the ordinary course of business of the Shareholders’ Representative under the engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, 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 Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Shareholders’ Representative from (x) the funds in the Expense Fund, and (y) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Company Securityholders or authority to act with respect to matters pertaining otherwise. Notwithstanding anything in this Agreement to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitationcontrary, an action any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against an individual Selling Party for hisnon-parties otherwise applicable to, her or its individual breach of a covenant the Company Securityholders set forth elsewhere in this Agreement), and Agreement are not intended to be applicable to the powers conferred on indemnities provided to the Shareholders’ Representative herein and in under this section. The foregoing indemnities will survive the Option Agreement shall not authorize Closing, the resignation or empower removal of the Shareholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will make a payment up to do or cause US$30,000 (the “Expense Fund”) to be done any action (including by amending, modifying or waiving any the Shareholders’ Representative upon provision of this Agreement any receipts and invoices supporting any expenses, which will be used for the purposes of paying directly, or reimbursing the Option Agreement) that (i) results in the amounts payable hereunder to Shareholders’ Representative for, any Selling Party being distributed in any manner other than as permitted third-party expenses pursuant to this Agreement and the Option Agreement, (ii) alters agreements ancillary hereto]. The Company Securityholders will not receive any interest or earnings on the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change Expense Fund and irrevocably transfer and assign to the nature Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the indemnity obligations)Expense Fund other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in each case with respect to clauses (i), (ii) and (iii) the event of this Section 8.1(c), without first obtaining bankruptcy. As soon as practicable following the prior written approval completion of the Selling PartiesShareholders’ Representative’s responsibilities, the Shareholders’ Representative will deliver any remaining balance of the Expense Fund to the Company. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (A) the implementation of the Agreement by the Seller and Shareholders, by adopting this Agreement and (B) the waiver of any condition to the obligations of the Seller or the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser (C) the settlement of any dispute with respect to the Agreement, by execution of the Shareholder Consent, Shareholders have designated Seller as their representative (the "Shareholders' Representative").
(b) By execution of the Shareholder Consent, the Shareholders authorize the Shareholders’ ' Representative for and (A) to take all action necessary in connection with the implementation of the Agreement on behalf of the Selling PartiesShareholders, with the authority (i) waiver of any condition to perform the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the settlement of any dispute, (iiB) to give and receive all notices and communicationsrequired to be given under the Agreement, (iiiC) to agree totake any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement, negotiateand (D) to receive for Seller, enter into Shareholders and provide amendments Company Optionholders, if any, the Purchase Price, including, without limitation, that portion of the Purchase Price paid at the Closing and supplements any portion of the Standard Escrow Sum, the Additional Escrow Sum and any interest accruing thereon disbursed under the terms of the Escrow Agreement for the benefit of Seller, Shareholders and the Company Optionholders (if any). The Shareholders' Representative shall have no duty to invest any portion of the Purchase Price received by the Shareholders' Representative or to accrue any interest thereon, and waivers may deposit the Purchase Price, pending its disbursement, in respect a non-interest bearing account or accounts.
(c) In the event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, a person appointed by Shareholders' Representative (in the event of his resignation) or Seller's personal representative (in the event of his death or incapacity) shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Global is given notice of it by the Seller and Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this Agreement and the Option Shareholder Consent, the Seller and Shareholders have agreed that:
(i) Global shall be able to rely conclusively on the instructions and decisions of the Shareholders' Representative as to any actions required or permitted to be taken by the Shareholders or the Shareholders' Representative hereunder, and no party hereunder shall have any cause of action against Global for action taken by Global in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall be conclusive and binding upon all of the Shareholders; no Shareholder shall have any cause of action against Global or the Company for any action taken or omitted to be taken, decision made or omitted to be made or any instruction given or omitted to be given by the Shareholders' Representative; and no Shareholder shall have any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for fraud, gross negligence or willful breach of this Agreement by the Shareholders' Representative;
(iii) the Shareholders' Representative shall be deemed to fulfill any fiduciary obligation to the Shareholders or Company Optionholders (if any) so long as no Shareholder is adversely affected by any action or failure to act of the Shareholders' Representative in a disproportionate measure compared to any other Shareholder;
(iv) to retain legal counsel, accountants, consultants and other experts, and incur remedies available at law for any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment breach of the Shareholders’ Representative for provisions of this Section 2.16 are inadequate; therefore, Global shall be entitled to temporary and permanent injunctive relief without the accomplishment ofnecessity of proving damages if Global brings an action to enforce the provisions of this Section 2.16; and
(v) the provisions of this Section 2.16 are independent and severable, any or all shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the foregoing. K Laser hereby accepts its appointment as Shareholders to the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties ' Representative and to Parent and Purchaser. No bond shall be required binding upon the executors, heirs, legal representatives and successors of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(bvi) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith All fees and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense expenses incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ ' Representative shall be paid by the Seller, Shareholders and Company Optionholders (if any) based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature their aggregate Allocable Portions of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPurchase Price.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (such person and any successor being the “Shareholders’ Representative”) shall act as the representative of the Shareholders, and shall be authorized to act on behalf of the Shareholders and to take any and all actions required or permitted to be taken by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article VIII and on behalf of the Selling Parties, with the authority (i) respect to perform the obligations of any actions to be taken by the Shareholders’ Representative set forth in this pursuant to the Escrow Agreement and (including, without limitation, the Option Agreementexercise of the power to (i) authorize the delivery of the Escrow Fund to a Parent Indemnified Party, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur comply with orders of courts with respect t any other reasonable expenses, in connection with, claims for indemnification and to (iii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing). In all matters relating to this Article VIII, any or the Shareholders’ Representative shall be the only party entitled to assert the rights of the Shareholders, and the Shareholders’ Representative shall perform all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest obligations of the shares of Everest of the Selling Shareholders hereunder. The Parent Indemnified Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Shareholders’ Representative shall promptly, and in any event within five (5) business days, provide written notice to the Shareholders of any action taken on behalf of them by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 8.6. The Shareholders’ Representative shall, at all times, act in his or her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interest of the Shareholders. Neither the Shareholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Shareholders’ Representative shall not be liable have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As t any matters not expressly provided for any act done in this Agreement or omitted hereunder as the Escrow Agreement, the Shareholders’ Representative while acting in good faith and without negligence and shall not exercise any act done discretion or omitted pursuant take any action.
(c) Notwithstanding anything to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest contrary herein or in the shares of EverestEscrow Agreement, indemnify the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Shareholder any merger consideration to which such Shareholder is entitled under this Agreement and the Shareholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Shareholder unless Shareholders’ Representative is expressly authorized to do so in a writing signed by such Shareholder.
(d) If Shareholders’ Representative shall die, resign, become disabled or otherwise be unable to fulfill his responsibilities hereunder, or if Shareholders owning a majority of Shares of the Surviving Corporation owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing) shall elect to remove (with or without cause) Shareholders’ Representative, Shareholders shall (by consent of Shareholders owning at least a majority of shares of the Company owned by all Shareholders in the aggregate at the time (or as of the Closing, if after the Closing), within 10 days after such death, resignation, disability, inability or removal, appoint a successor to Shareholders’ Representative (who shall be reasonably satisfactory to Parent). Any such successor shall succeed Shareholders’ Representative as Shareholders’ Representative hereunder. If for any reason there is no Shareholders’ Representative at any time, all references herein to Shareholders’ Representative shall be deemed to refer to Shareholders holding a majority of the Shares.
(e) Shareholders, jointly and severally, agree to indemnify Shareholders’ Representative and to hold it Shareholders’ Representative harmless against any and all loss, liability or expense incurred without fraud, willful misconduct or gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require as Shareholders’ Representative, including the reasonable costs and expenses incurred by Shareholders’ Representative to expend in defending against any claim or risk its own funds or otherwise incur any financial liability in connection with this Agreement. This indemnification shall survive the exercise or performance termination of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesAgreement. The costs of such indemnification (including the costs and expenses of enforcing the right of indemnification) shall be paid by the Shareholders pro rata in accordance with amounts of the total Purchase Price to be received by each Shareholder (and assuming payment in full of the Earn out Payments). Shareholders’ Representative may may, in good faith all questions arising under this Agreement, rely conclusively upon on the informationadvice of counsel and for anything done, reports, statements and opinions prepared omitted or presented suffered by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on in accordance with such reliance advice, Shareholders’ Representative, solely in its capacity as Shareholders’ Representative, shall not be deemed conclusively liable to have been taken Shareholders, except as expressly provided hereunder. In no event shall Shareholders’ Representative be liable to Shareholders hereunder or in good faithconnection herewith, solely in its capacity as Shareholders’ Representative, for any consequential, special, consequential or punitive damages.
(cf) Notwithstanding Neither Parent nor its Affiliates shall have the foregoing provisions in this ARTICLE VIIIright to object to, protest or otherwise contest any provision matter related to the contrary set forth in this Agreement or the Option Agreement, the procedures for action being taken by Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the between Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
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Shareholders’ Representative. (a) The Selling Parties, by adopting Through signature on this Agreement and/or approval of this Agreement, each of the Shareholders hereby appoints ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. as such Shareholder’s exclusive agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (iiRepresentative”) to give and receive notices and communicationscommunications with respect to the provisions of this Agreement, (iii) and to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect settlements or compromises of matters arising under this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take any and all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all to be taken on behalf of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ RepresentativeShareholders under this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties is irrevocable and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representativecoupled with an interest. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each the Shareholders in respect of the Selling Partiesmatters under this Agreement. The Shareholders agree that a decision, except for notices related to any action for which the Selling Parties’ act, consent is required under the terms or instruction of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ RepresentativeRepresentative shall constitute a decision of all Shareholders, including and shall be final, binding and conclusive upon each Shareholder, and Parent may rely upon any decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of all Shareholders. Parent and its Affiliates shall not be liable in electronic formany way to the Shareholders based on any act or omission of the Shareholders’ Representative relating to this Agreement.
(b) The Shareholders’ Representative shall not be liable to the Shareholders only for his proven bad faith, willful misconduct, or gross negligence, as determined in light of all the circumstances, including the time and facilities available to him in the ordinary conduct of business. In determining the occurrence of any act done event or omitted hereunder contingency, the Shareholders’ Representative may request from any of the Shareholders or any other Person such reasonable additional evidence as the Shareholders’ Representative while acting in good faith and without negligence and his sole discretion may deem necessary to determine any act done or omitted pursuant fact relating to the advice of counsel shall be conclusive evidence occurrence of such good faith event or contingency, and absence may at any time inquire of negligenceand consult with others, including any of the Shareholders, and may obtain legal advice, and the Shareholders’ Representative shall not be liable to any Shareholder for any damages resulting from his delay in acting hereunder pending his receipt and examination of additional evidence, counsel or advice requested by him.
(c) The Shareholders’ Representative is authorized, in his sole discretion, to comply with final, nonappealable orders issued or process entered by any court of competent jurisdiction with respect to the Holdback Merger Consideration. The Selling Parties shall severally (and not jointly), according If any portion of the Holdback Merger Consideration is disbursed to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against is at any losstime attached, liability garnished or expense incurred without gross negligence levied upon under any court order, or bad faith on in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, writ, judgment or decree shall be made or entered by any court affecting such property or any part of thereof, then and in any such event, the Shareholders’ Representative is authorized, in his sole discretion, but in good faith, to rely upon and arising out of comply with any such order, writ, judgment or in connection with decree which he is advised by legal counsel selected by him is binding upon it without the acceptance need for appeal or administration of his duties hereunder. No provision of this Agreement shall require other action; and if the Shareholders’ Representative complies with any such order, writ, judgment or decree, he shall not be liable to expend any Shareholder or risk its own funds to any other Person by reason of such compliance even though such order, writ, judgment or otherwise incur any financial liability in the exercise decree may be subsequently reversed, modified, annulled, set aside or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Partiesvacated. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itshall have responsibility for withholding Taxes, and with respect to any action taken certifications and governmental reporting that may be required under any laws or regulations that may be applicable to the distribution of payments to the Shareholders by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithunder this Agreement.
(cd) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, In no event shall the Shareholders’ Representative be liable to any Shareholder for incidental, indirect, special, consequential or punitive damages.
(e) The Shareholders’ Representative shall only be entitled to reimbursement for expenses (including attorneys’ fees) that are incurred by Shareholders’ Representative in connection with his performance hereunder. Such expenses shall be deducted from any Holdback Merger Consideration that is distributed to the Shareholders’ Representative for further distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders. If the aggregate amount of such expenses exceeds the Holdback Merger Consideration distributed to the Shareholders’ Representative for the benefit of the Shareholders, each Shareholder shall be liable for its pro rata share (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) of such excess expenses (including attorneys’ fees).
(f) In the event that the Shareholders pay Parent and/or Shareholders’ Representative any amounts pursuant to this Agreement, such Shareholders shall be entitled to reimbursement for the amount of any such payments out of (and any such amounts shall be deducted by the Shareholders’ Representative from) any future Holdback Merger Consideration that is distributed to the Shareholders’ Representative for future distribution to the Shareholders prior to Shareholders’ Representative’s distribution of such Holdback Merger Consideration to the Shareholders.
(g) If the Shareholders’ Representative resigns (by giving at least sixty (60) days’ written notice of such resignation to Parent) or dies or becomes incapable of continuing to act as the Shareholders’ Representative for any reason, a successor Shareholders’ Representative (who shall either be a Shareholder or another Person reasonably acceptable to Parent) shall be appointed in writing by a majority in interest of the Shareholders (which for purposes of this Agreement shall be based on their respective portions of the Company Shares Outstanding immediately prior to the Closing Date), such appointment to become effective upon the delivery of executed counterparts of such writing to Parent, together with an acknowledgement signed by the successor Shareholders’ Representative named in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all provisions of this Agreement applicable to the Shareholders’ Representative. Pending the election of a successor Shareholders’ Representative, the Shareholder that has the largest aggregate stake in the Total Merger Consideration immediately following the Effective Time (excluding any former Shareholders’ Representative) shall act as the interim Shareholders’ Representative. Failing such appointment, Parent or any Shareholder may apply to a court of competent jurisdiction for the appointment of a successor Shareholders’ Representative.
(h) A majority in interest of the Shareholders (based on their respective portions of Company Shares Outstanding immediately prior to the Closing Date) shall have the power right at any time during the term of this Agreement to remove the then-acting Shareholders’ Representative and to appoint a successor Shareholders’ Representative (who shall either be a Shareholder or authority another Person reasonably acceptable to act Parent); provided, however, that such removal of the then-acting Shareholders’ Representative shall not be effective until the delivery to Parent of executed counterparts of a writing signed by a majority in interest of the Shareholders with respect to matters pertaining such removal and appointment, together with an acknowledgement signed by a successor Shareholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Selling Parties Shareholders’ Representative.
(i) Each interim and successor Shareholders’ Representative shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term Shareholders’ Representative as a group and not matters pertaining used herein shall be deemed to an individual Selling Party include any interim or successor Shareholders’ Representative.
(for example but not j) Any notices given by way Parent while there is no Shareholders’ Representative shall be sufficiently given if given to the Shareholder with the largest stake in the Holdback Merger Consideration immediately following the Effective Time (excluding the former Shareholders’ Representative). A copy of limitation, an action against an individual Selling Party for all such notices shall be delivered to the successor Shareholders’ Representative upon his, her or its individual breach of a covenant in this Agreement)appointment and he, and she or it shall have five (5) days thereafter to take such actions as may be required under the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision terms of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to connection with any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch notice.
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Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and Each of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Persons designated in the preamble hereto as the Shareholders’ Representative for and on behalf hereunder shall have each of the Selling Partiesrights, with the authority (i) to perform the duties and obligations of the Shareholders’ Representative set forth in this Section 11.1, and, notwithstanding anything to the contrary set forth in this Agreement or any Transaction Document, Parent and the Option AgreementSurviving Corporation (i) shall be entitled to rely on any communication from either of the Persons designated as the Shareholders’ Representative as the action of the Shareholders’ Representative hereunder, and (ii) shall be deemed to have delivered any required notice hereunder or under any Transaction Document to the Shareholders’ Representative upon delivery of notice in accordance with Section 11.2 of this Agreement or any corresponding section of any Transaction Document to either of the Persons designated as the Shareholders’ Representative. The Shareholders’ Representative may be removed at any time upon the written election of the Shareholders representing at least 75% of the aggregate voting power of the Shares immediately prior to the Closing; provided that such Shareholders concurrently elect a replacement Shareholders’ Representative and Parent is given prompt written notice of such replacement by the Shareholders’ Representative. Each Shareholder hereby constitutes and appoints the Shareholders’ Representative, including any replacement of any such Shareholders’ Representative, as attorney-in-fact for such Shareholder with full power and authority to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement, to give and receive notices and communications, (iii) to dispute any claim of any Parent Indemnified Party with respect to indemnification hereunder, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur to comply with orders of courts with respect to any other reasonable expenses, in connection with, dispute or loss and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as ; provided, however, that the Shareholders’ RepresentativeRepresentative shall not have the power or authority to execute an amendment, waiver, document or other instrument that, notwithstanding any other provision to the contrary, increases in any material respect the obligations or liabilities of any Shareholder without the prior written consent of that Shareholder. Such agency may The Shareholders shall, pro rata, be changed responsible for the payment of all fees and expenses reasonably incurred by the holders of a majority Shareholders’ Representative in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaserperforming its/his duties under this Agreement. No bond shall be required All decisions of the Shareholders’ Representative. Notices or communications to or from Representative may be relied upon by the Shareholders’ Representative to Parent Parent, the Company and any third person, and shall constitute notice to or from be binding and conclusive upon each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formShareholder.
(b) The Shareholders’ Representative shall not be liable liable, responsible or accountable in damages or otherwise to the Shareholders for any loss or damage incurred by reason of any act done or omitted hereunder as failure to act by such Shareholders’ Representative, and each Shareholder shall severally and not jointly, pro rata, indemnify and hold harmless the Shareholders’ Representative while acting in good faith and without negligence and against any act done loss or omitted pursuant damage except to the advice extent that such loss or damage shall have been the result of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without individual gross negligence or bad faith on the part willful misconduct of the such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. Representative.
(c) The Shareholders’ Representative may shall be entitled to withdraw an amount in good faith rely conclusively upon cash of up to Five Hundred Thousand Dollars ($500,000) in the informationaggregate from the Escrow Funds for the payment of expenses, reportscharges and liabilities, statements and opinions prepared or presented by counsel or other professionals retained by itincluding reasonable attorneys’ fees, and any action taken incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, performance or any provision to the contrary set forth in this Agreement or the Option Agreement, discharge of the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Representative’s rights, duties and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to obligations under this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature each of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesTransaction Documents.
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Shareholders’ Representative. (a) The Selling PartiesPerson designated as the Shareholders Representative on Schedule 2.1 (and any successor approved by Shareholder Action) is hereby appointed, by adopting this Agreement authorized and empowered to act as a representative for all Shareholders as the exclusive agent and attorney-in-fact to act on behalf of each Shareholder in connection with and to facilitate the consummation of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser will have the power and authority:
(i) to execute and deliver such amendments, waivers and consents in connection with this Agreement, in each case as the Shareholders’ Shareholders Representative, in its sole discretion, may deem necessary or desirable;
(ii) as Shareholders Representative, to enforce the rights of all Shareholders and to enforce the rights of the Shareholders Representative arising out of or under or in any manner relating to this Agreement, and to take any and all actions which the Shareholders Representative believes are necessary or appropriate under this Agreement for and on behalf of the Selling PartiesShareholders, including asserting or pursuing any claim, investigation or action (a “Claim”) against or defending any Claim made by Wabtec, consenting to, compromising or settling any such Claims, conducting negotiations with Wabtec and its respective representatives regarding such Claims and, in connection therewith, to (A) assert any claim or institute any Claim; (B) investigate, defend, contest or litigate any Claim initiated by Wabtec, or by any Governmental Authority against the authority (i) to perform the obligations Shareholders Representative or any of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect process on behalf of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment Shareholders in any such Claim and compromise or settle on such terms as the Shareholders’ Representative. Such agency may Representative determines to be changed by appropriate, and give receipts, releases and discharges with respect to, any such Claim, and (C) file and prosecute appeals from any decision, judgment or award rendered in any such Claim, it being understood that the holders of a majority in interest of the shares of Everest of the Selling Parties from time Shareholders Representative will not have any obligation to time upon take any such Claims, and will not less than ten have any liability for any failure to take any such Claims;
(10iii) days’ prior written notice to interpret all of the Selling Parties provisions of this Agreement and to Parent consent to, execute and Purchaser. No bond shall be required delivery any amendment or waiver hereof or thereof on behalf of the Shareholders’ Representative. Notices or communications ; and
(iv) to or from make, execute, acknowledge and deliver all such other agreements, notices, requests, instructions, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formits sole and absolute discretion, may consider necessary or appropriate in connection with or to carry out the transactions contemplated by this Agreement.
(b) The Shareholders’ Shareholders Representative shall will not be liable entitled to any fee, commission or other compensation for the performance of its services hereunder, but will be entitled to the payment by the Shareholders of all its costs and expenses incurred as the Shareholders Representative. In connection with this Agreement and in exercising or failing to exercise all or any act done or omitted hereunder as of the powers conferred upon the Shareholders’ Representative while acting hereunder (i) the Shareholders Representative will incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents bad faith or willful misconduct, and (ii) the Shareholders Representative will be entitled to rely in good faith and without negligence and any act done or omitted pursuant to on the advice of counsel counsel, public accountants or other experts experienced in the matter at issue, and any error in judgment or other act or omission of the Shareholders Representative pursuant to such advice shall be conclusive evidence in no event subject the Shareholders Representative to liability to any Shareholders. Each Shareholder will indemnify, pro rata based upon such Shareholder’s ownership percentage of such good faith Shares, the Shareholders Representative against all losses, damages, liabilities, claims, obligations, costs and absence expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of negligence. The Selling Parties shall severally any judgment against it or them (including any and not jointlyall expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof relating to the acceptance acts or administration omissions of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Shareholders Representative to expend hereunder or risk its own funds or otherwise incur any financial liability otherwise; provided, however, that the foregoing indemnification will not apply in the exercise event of any act or performance omission to act which is finally judicially adjudicated to have resulted from the bad faith or willful misconduct of the Shareholders Representative. Any amount payable to the Shareholders Representative pursuant to this Section 2.11 will be paid to the Shareholders Representative by the Shareholders and none of Wabtec or any of its powersrespective Affiliates, rightsdirectors, duties officers, employees, representatives or privileges under this Agreement on behalf advisors will have any liability to the Shareholders Representative. Upon written notice from the Shareholders Representative to the Shareholders as to the existence of a deficiency toward the payment of any Selling Parties. The Shareholders’ such indemnification amount, each Shareholder will promptly deliver to the Shareholders Representative may full payment of his, her or its ratable share of the amount of such deficiency based upon such Shareholder’s ownership percentage; provided, that no such Shareholder will be liable for any claim of indemnification which is, individually or in good faith rely conclusively upon the informationaggregate, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by in excess of such Shareholder’s ownership percentage of the Shareholders’ Representative based on aggregate liquidation preference of the Shares to which such reliance shall be deemed conclusively Shareholder received pursuant to have been taken in good faiththe SPA.
(c) Notwithstanding All of the foregoing provisions indemnities, immunities and powers granted to the Shareholders Representative under this Agreement will survive any termination of this Agreement.
(d) The grant of authority provided for in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that Section 2.11 (i) results in is coupled with an interest and is irrevocable and will survive the amounts payable hereunder to death, incompetency, bankruptcy or liquidation of any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement Shareholder and the Option Agreement, (ii) alters will survive the consideration payable to any Selling Party pursuant to this Agreement Closing.
(e) A decision, act, consent or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature instruction of the indemnity obligations)Shareholders Representative constitutes a decision, in each case with respect to clauses (i)act, (ii) consent or instruction, as applicable of all the Shareholders, and (iii) of this Section 8.1(c)Wabtec may rely upon any such decision, without first obtaining the prior written approval act, consent or instruction of the Selling PartiesShareholders Representative as being the decision, act, consent or instruction of all Shareholders.
Appears in 1 contract
Sources: Shareholders Agreement (Westinghouse Air Brake Technologies Corp)
Shareholders’ Representative. Each of the Shareholders hereby irrevocably makes, constitutes and appoints ▇▇▇ ▇▇▇▇▇▇▇▇▇ as his agent and representative and attorney-in- fact (the "Shareholders' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to: (a) receive all notices or documents given or to be given to him by Phoenix pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder ; (b) deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration; (c) sign and deliver to Phoenix at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder; (d) deliver to Phoenix at the Closing all certificates and documents to be delivered to Phoenix by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose; (e) engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions contemplated hereby as the Shareholders' Representative may deem appropriate; and (f) take such action on behalf of such Shareholders as the Shareholders' Representative may deem appropriate in respect of: (i) waiving any inaccuracies in the representations or warranties of Phoenix contained in this Agreement or in any document delivered by it pursuant hereto; (ii) waiving the fulfillment of any of the conditions precedent to the Shareholders' obligations hereunder; (iii) taking such other action as he is authorized to take under this Agreement; (iv) receiving all documents or certificates and making all determinations on behalf of the Shareholders required under this Agreement; and (v) all such other matters as the Shareholders' Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations . The appointment of the Shareholders’ ' Representative set forth in this Agreement hereunder is irrevocable and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in is deemed coupled with an interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by Shareholders' Representative pursuant to the authority granted in this Section 9.1 shall be effective and absolutely binding on each Shareholder notwithstanding any contrary action of or direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the prior authority and agency of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Phoenix International Industries Inc /Fl/)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (i) the implementation of the Agreement as it pertains to the Shareholders and Optionholders, by adopting this Agreement and (ii) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) the settlement of any dispute with respect to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in ▇▇▇▇▇▇▇ ▇▇▇ is hereby designated as the judgment representative of the Shareholders’ Representative for Shareholders and Optionholders (the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the “Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form”).
(b) The Shareholders’ Representative shall not is hereby authorized (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Shareholders, the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby or the settlement of any dispute, (ii) to give and receive all notices required to be liable given under the Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders and Optionholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to the Parent for any act done or omitted hereunder as cancellation; provided, however, that the Shareholders’ Representative while acting shall not have authority to commence legal proceedings on behalf of the Shareholders and Optionholders without their prior written consent or to amend any provision of this Agreement without their prior written consent.
(c) In the event that the Shareholders’ Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇▇▇▇ ▇▇▇▇ shall fill such vacancy and shall be deemed to be the Shareholders’ Representative for all purposes of this Agreement; however, no change in good faith the Shareholders’ Representative shall be effective until Parent is given notice of it by the remaining Shareholders and without negligence Optionholders.
(d) All decisions and actions by the Shareholders’ Representative shall be binding upon all of the Shareholders and Optionholders, and no Shareholder or Optionholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the parties agree that:
(i) Parent and Merger Subsidiary shall be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to any act done actions required or omitted pursuant permitted to be taken by the advice Shareholders or the Shareholders’ Representative hereunder, and no party hereunder shall have any cause of counsel action against Parent or Merger Subsidiary for any action taken by Parent or Merger Subsidiary in reliance upon the instructions or decisions of the Shareholders’ Representative;
(ii) all actions, decisions and instructions of the Shareholders’ Representative shall be conclusive evidence and binding upon all of such good faith the Shareholders and absence Optionholders and no Shareholder or Optionholder shall have any cause of negligence. The Selling Parties action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) remedies available at law for any breach of the provisions of this Section 1.13 are inadequate; therefore, Parent or Merger Subsidiary shall severally be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Parent or Merger Subsidiary brings an action to enforce the provisions of this Section 1.13; and
(iv) the provisions of this Section 1.13 are independent and not jointly)severable, according shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders and Optionholders to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossshall be binding upon the executors, liability or expense heirs, legal representatives and successors of each Shareholder.
(f) All fees and expenses incurred without gross negligence or bad in good faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken obligations hereunder by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
paid by the Shareholders and Optionholders and each Shareholder and Optionholder shall be severally liable for such fees. Furthermore, if any such fees or expenses are outstanding and unpaid as of the first or second anniversary of the Closing Date, then, after fifteen (c15) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision days’ prior written notice to the contrary set forth in this Agreement or the Option AgreementShareholders (with a copy to Parent), the Shareholders’ Representative shall only have be entitled to withhold from the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement First Installment Payment or the Option Agreement) that (i) results in the Second Installment Payment, as applicable and if paid, amounts payable hereunder sufficient to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement compensate him for such outstanding and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement unpaid fees or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesexpenses.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy virtue of their approval of this Agreement, by adopting this Agreement the Shareholders will be deemed to have irrevocably constituted and appointed, effective as of the Closing, Yag Pate▇ (▇▇e "Shareholder Representative"), as their true and lawful agent and attorney-in-fact to enter into any agreement in connection with the transactions contemplated herebyby the Escrow Agreement, hereby irrevocably appoint including, without limitation, entering into the Escrow Agreement and constitute K Laser as the Shareholders’ Representative for and exercising on behalf of the Selling Parties, with the authority (i) to perform the obligations Shareholders all or any of the Shareholders’ Representative set forth in this Agreement powers, authority, rights and discretion conferred on them under or the Option Escrow Agreement, including without limitation waiving any terms and conditions of any such agreement (ii) to give other than the payment of the Escrow Fund), giving and receive receiving notices and communications, (iii) authorizing delivery to agree Parent of the Escrow Fund or other property from the Escrow Fund in satisfaction of claims by Parent, objecting to such deliveries, agreeing to, negotiatenegotiating, enter entering into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscomprises of, and incur any other reasonable expenses, in connection withdemanding arbitration and complying with orders of courts and awards of arbitrators with respect to such claims, and to take taking all actions necessary or appropriate in the judgment of the Shareholders’ Shareholder Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Shareholder Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Shareholder Representative while acting in good faith and without negligence in the exercise of reasonable judgment. This power of attorney is coupled with an interest and any act done is irrevocable. Notices or omitted pursuant communications to or from the advice Shareholder Representative shall constitute notice to or from the Shareholders. A decision, act, consent or instruction of counsel the Shareholder Representative shall be final, binding and conclusive evidence upon the Shareholders, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of such good faith and absence the Shareholder Representative as being the decision, act, consent or instruction of negligencethe Shareholders. The Selling Parties 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.
(b) In the event that the Merger is approved by the Shareholders, effective upon such vote, and without further act of any Shareholder, the Shareholders shall agree, severally (and not jointly), according to each Selling Parties’ pro-on a pro rata interest basis based on their proportionate ownership interests in the shares of EverestCompany, indemnify the Shareholders’ Representative to indemnify, defend and hold it the Shareholder Representative harmless from and against any loss, damage, tax, liability or and expense that may be incurred without gross negligence or bad faith on by the part of the Shareholders’ Shareholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision the Shareholder Representative's duties, except as caused by the Shareholder Representative's gross negligence or willful misconduct, including the legal costs and expenses of this Agreement shall require the Shareholders’ defending such Shareholder Representative to expend against any claim or risk its own funds or otherwise incur any financial liability in connection with the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholder Representative's duties.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Xcarenet Inc)
Shareholders’ Representative. The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time (athe “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Selling PartiesShareholders hereby designate Shareholder Representative Services LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by adopting the vote of Persons which collectively owned more than fifty percent (50%) of the Company Ordinary Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be appointed by a vote of the Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and in each case on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts The Shareholders’ Representative shall have no liability to TRTL, TRTL Parent, the Company or any Shareholder with respect to actions taken or omitted to be taken, except to the extent arising out of the Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct. The Shareholders’ Representative shall be entitled to engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its appointment as powers and performing its function hereunder and shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties The Shareholders will indemnify, defend and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from hold harmless the Shareholders’ Representative to Parent shall constitute notice to or from each of and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith fees and without negligence and any act done or omitted pursuant to the advice expenses of counsel shall be conclusive evidence and experts and their staffs and all expense of such good faith document location, duplication and absence of negligence. The Selling Parties shall severally shipment) (and not jointly)collectively, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ “Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, any such Representative Losses may be recovered by the Shareholders’ Representative from the funds in the Expense Fund; provided, that while this section allows the Shareholders’ Representative to expend be paid from the Expense Fund, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersincurred, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by nor does it prevent the Shareholders’ Representative based on such reliance shall be deemed conclusively from seeking any remedies available to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, it at law or any provision to the contrary set forth in this Agreement or the Option Agreement, otherwise. In no event will the Shareholders’ Representative shall only have be required to advance its own funds on behalf of the power Shareholders or authority to act with respect to matters pertaining to otherwise. The Shareholders acknowledge and agree that the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way foregoing indemnities will survive the resignation or removal of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in or the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. (a) The Selling PartiesBy voting in favor of the Merger, executing the Voting and Support Agreement or Support Agreement or, in the case of Company Option Holders and Company Restricted Stock Unit Holders, a Letter of Transmittal or participating in the conversion or cancellation, as applicable, of the Company’s Capital Stock, Common Options or Restricted Stock Units, each Equity Holder approves the designation of and designates Shareholder Representative Services LLC as the Shareholders’ Representative, as its, his or her true and lawful attorney-in-fact and agent, each with full power of substitution or resubstitution, to act solely and exclusively on behalf of such Company Indemnifying Party with respect to the transactions contemplated by adopting this Agreement Agreement, including the Merger, and to act on behalf of such Company Indemnifying Party in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for such Company Indemnifying Party with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of such Shareholder;
(ii) to act for such Company Indemnifying Party with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby irrevocably appoint and constitute K Laser as or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds for the payment of expenses of such Company Indemnifying Party and apply such funds in payment for such expenses;
(v) to distribute any unused portion of the Reserve Account to the Company Indemnifying Parties in accordance with the terms of this Agreement;
(vi) to do or refrain from doing any further act or deed on behalf of such Company Indemnifying Party that the Selling Parties, with Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the authority subject matter of this Agreement as fully and completely as such Company Indemnifying Party could do if personally present; and
(ivii) to perform the obligations receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholders’ Representative set forth in this Agreement shall be deemed coupled with an interest and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsshall be irrevocable, and incur Buyer, the Merger Sub and any other reasonable expensesPerson may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in connection withall matters referred to herein. After the Closing, and all notices required to take all actions necessary be made or appropriate in delivered by Buyer or the judgment of Merger Sub to the Company Indemnifying Party described above shall be made to the Shareholders’ Representative for the accomplishment ofbenefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the Merger Sub as applicable, to such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the foregoing. K Laser hereby accepts its appointment as matters set forth in this Agreement in the manner the Shareholders’ Representative. Such agency may Representative reasonably believes to be changed by in the holders of a majority in best interest of the shares of Everest Company Indemnifying Parties and consistent with the obligations of the Selling Company Indemnifying Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required under this Agreement, but none of the Shareholders’ Representative. Notices , Buyer, the Merger Sub, the Surviving Corporation or communications the Buyer Indemnitees shall be responsible to any Company Indemnifying Party for any damages which the Company Indemnifying Parties may suffer by the performance of the Shareholders’ Representative’s duties under this Agreement or from any agreements ancillary hereto, except that the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except be responsible for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence damages directly resulting from the Shareholders’ Representative, including ’s gross negligence or willful misconduct in electronic form.
(b) the performance of its duties under this Agreement. The Shareholders’ Representative shall not have any duties or responsibilities except those expressly set forth in the Transaction Documents, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to consult with counsel and shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (and not jointly), according Shareholders’ Representative will incur no liability of any kind with respect to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to this Agreement and hold it harmless against any lossagreements ancillary hereto, except in the event of liability or expense incurred without directly resulting from the Shareholders’ Representative’s gross negligence or bad faith willful misconduct. By voting in favor of the Merger, executing the Voting and Support Agreement or Support Agreement or, in the case of Company Option Holders and Company Restricted Stock Unit Holders, a Letter of Transmittal or participating in the conversion or cancellation, as applicable, of the Company’s Capital Stock or Common Options or Restricted Stock Units, each Company Indemnifying Party agrees (on the part of a several and not joint basis in accordance with his, her or its Pro Rata Portion) to indemnify, defend and hold harmless the Shareholders’ Representative, its agents and assigns from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of outside counsel and third party experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Indemnifying Parties the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Indemnifying Parties, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the Reserve Amount and (ii) the funds in the Escrow Fund but only at such time as remaining amounts would otherwise be distributable to the Company Indemnifying Parties; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Representative Losses as they are suffered or risk incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Company Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
(c) The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any Selling statements furnished to it by the Company, any Company Indemnifying Party, Buyer, the Merger Sub or any other evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall be entitled to act on the advice of counsel selected by it.
(d) The Shareholders’ Representative will have the right to be reimbursed from the Reserve Account solely for its out-of-pocket expenses incurred, in its capacity as such, pursuant to this Agreement but will not otherwise be separately compensated for its services hereunder other than pursuant to the terms of that certain Engagement Letter to be entered into by and among Shareholders’ Representative, the Company, and certain of the Company Indemnifying Parties. The Reserve Account will be used solely for the purpose of paying the Shareholders’ Representative’s expenses under this Section 11.13(d) and any amounts representing the indemnification obligations of the Company Indemnifying Parties to the Shareholders’ Representative under Section 11.13(b) above as if such obligations were a reimbursable expense. The Company Indemnifying Parties will not receive any interest or earnings on the Reserve Account and irrevocably transfer and assign to the Shareholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholders’ Representative may will not be liable for any loss of principal of the Reserve Account other than as a result of its gross negligence or willful misconduct. The Shareholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in good faith rely conclusively upon the informationevent of bankruptcy. Any amounts remaining in the Reserve Account on the Reserve Amount Release Date shall be released to the Paying Agent and Surviving Corporation for their payments to the Shareholders respectively. For tax purposes, reportsthe Reserve Amount will be treated as having been received and voluntarily set aside by the Company Indemnifying Parties (and, statements with respect to Company Option Holders and opinions prepared or presented by counsel or other professionals retained by itCompany Restricted Stock Unit Holders, and any action taken by subject to applicable Tax withholding) at the time of Closing.
(e) In the event that the Shareholders’ Representative based on such reliance dies, becomes legally incapacitated, resigns (by providing Buyer a minimum of 10 day advance written notice), or is hereby removed by a vote of a majority in interest of the Company Indemnifying Parties from its position as Shareholders’ Representative, a successor Shareholders’ Representative shall be deemed conclusively appointed in writing by a majority in interest of the Company Indemnifying Parties, such appointment to have been taken become effective upon the delivery of executed counterparts of such writing to Buyer, together with an acknowledgement signed by the successor Shareholders’ Representative named in good faith.
(c) Notwithstanding such writing that he, she or it accepts the foregoing responsibility of successor Shareholders’ Representative and agrees to perform and be bound by all provisions in of this ARTICLE VIII, or any provision Agreement applicable to the contrary set forth in this Agreement or Shareholders’ Representative. Failing such appointment, any Company Indemnifying Party may apply to a court of competent jurisdiction for the Option Agreementappointment of a successor Shareholders’ Representative. If for any reason there is no Shareholders’ Representative at any time, all references herein to the Shareholders’ Representative shall only have the power or authority be deemed to act with respect to matters pertaining refer to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Company Indemnifying Parties.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby appointed as the Principal Shareholders’ and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative true and lawful representative, proxy, agent and attorney-in-fact (the “Shareholders’ Representative”) for a term that shall be continuing and indefinite and without a termination date except as otherwise provided herein, to act for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement Shareholders and the Option AgreementPrincipal Shareholders in connection with or relating to the Transaction Documents and the Contemplated Transactions, (ii) including, without limitation, to give and receive notices and communications, (iii) to receive and accept service of legal process in connection with any proceeding arising under the Transaction Documents or in connection with the Contemplated Transactions, to receive and deliver amounts comprising the Closing Purchase Consideration and the Post-Closing Purchase Consideration, to authorize delivery of cash from each of the Escrow Accounts in satisfaction of claims pursuant to ARTICLE VIII hereof, to object to or accept any claims against or on behalf of the Shareholders and Principal Shareholders pursuant to ARTICLE VIII, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the judgment sole opinion of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties at any time and from time to time by the action of Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, and shall become effective upon not less than ten thirty (1030) days’ days prior written notice to all ICF. Except as provided in the foregoing sentence, in the event that for any reason the most recent Shareholders’ Representative shall no longer be serving in such capacity, including, without limitation, as a result of the Selling Parties and to Parent and Purchaser. No bond shall be required death, resignation, or incapacity of the Shareholders’ Representative, either (i) the outgoing Shareholders’ Representative shall appoint a successor Shareholders’ Representative or (ii) if the outgoing Shareholders’ Representative is unable, unwilling or otherwise fails to appoint a successor Shareholder Representative, then ▇▇▇▇▇▇▇▇ ▇. Notices ▇▇▇▇▇▇ shall serve as the successor Shareholders’ Representative, or (iii) in the event that ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable or unwilling to serve as successor Shareholders’ Representative, Shareholders holding more than fifty percent (50%) of the issued and outstanding Shares just prior to the Contemplated Transactions, shall designate another Person to act as Shareholders’ Representative, such that at all times there will be a Shareholders’ Representative with the authority provided hereunder. Any change in the Shareholders’ Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to ICF. The Shareholders’ Representative shall not receive compensation for his or her services. Notices, deliveries or communications to or from the Shareholders’ Representative by or to Parent any of the parties to the Transaction Documents shall constitute notice notices, deliveries or communications to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder in his capacity as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencegross negligence or willful misconduct on his or her part. The Selling Parties Principal Shareholders shall jointly and severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ 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 nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) that may be sustained or suffered by the Shareholders’ Representative in connection with the administration of its duties hereunder, except where such Losses arise from or are the result of the Shareholders’ Representative’s gross negligence or bad faith on willful misconduct.
(c) Any decision, act, consent or instruction taken or given by the part Shareholders’ Representative pursuant to this Agreement shall be and constitute a decision, act, consent or instruction of all Shareholders and shall be final, binding and conclusive upon each such Shareholder and the Escrow Agent, ICF, and ICF Holdings and, following the completion of the Closing, Synergy, ICF and ICF Holdings may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each and arising out every Shareholder and shall have no duty to inquire as to the acts and omissions of the Shareholders’ Representative. The Escrow Agent, Synergy, ICF and ICF Holdings are hereby relieved from any liability to any Person for any acts done by them in accordance with, or in connection otherwise with respect to any aspect of, such decision, act, consent or instruction of the acceptance or administration of his duties hereunder. No provision of this Agreement shall require Shareholders’ Representative.
(d) Notices given to the Shareholders’ Representative in accordance with Section 9.2 shall constitute notice to expend the Shareholders or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powersPrincipal Shareholders, rightsas applicable, duties or privileges for all purposes under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser parties agree that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall act as the representative of the Shareholders (the "Shareholders’ Representative ' Representative") for and the purpose of settling on behalf of the Selling PartiesShareholders claims made by the Shareholders under Sections 9.4(e)(i) or 11.2 hereof, with and representing the authority (iShareholders in any indemnification proceedings by Newco, Alleghany or Transferee under Sections 9.4(e)(ii) and 11.1 hereof, in each case pursuant to perform the obligations of the Shareholders’ Representative procedures set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 11.3 hereof.
(b) The Shareholders shall be bound by any and all actions taken by the Shareholders’ ' Representative on their behalf.
(c) Newco, Alleghany and Transferee shall be entitled to rely upon any communication or writings given or executed by the Shareholders' Representative. All notices to be sent to the Shareholders pursuant to the indemnification provisions hereof may be addressed to the Shareholders' Representative and any notice so sent shall be deemed notice to all of the Shareholders hereunder. The Shareholders hereby consent and agree that the Shareholders' Representative is authorized to accept notice on behalf of the Shareholders pursuant hereto. (d) If for any reason ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall cease to act as the Shareholders' Representative hereunder, the Shareholders shall promptly appoint a new representative. Such appointment shall be deemed to have been made when set forth in a written communication to Alleghany, signed by -57-
(e) The Shareholders' Representative is hereby appointed and constituted the true and lawful attorney-in- fact of each Shareholder, with full power in his or her name and on his or her behalf:
(i) To act on such Shareholder's behalf according to the terms of this Agreement, including, without limitation, the power to act on their behalf in connection with any matter as to which the Shareholders are an "Indemnitor" or "Indemnitee" under this Article XI or under Section 9.4 hereof, all in the absolute discretion of the Shareholders' Representative; and (ii) In general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted subject to the interest of the other Shareholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of law, whether by the death or incapacity of any Shareholder, or by the occurrence of any other event. Each Shareholder shall jointly and severally hold the Shareholders' Representative free and harmless from any and all loss, damage or liability which he may sustain as a result of any action taken in good faith hereunder.
(f) The Shareholders' Representative shall not be liable to the Shareholders for any act done action taken or omitted hereunder as to be taken by him except in the case of willful misconduct. Each Shareholder agrees to pay his or her pro rata portion (based upon his or her proportionate share of the Alleghany Shares acquired or to be acquired pursuant to this Agreement) of all costs and expenses reasonably incurred by the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties as Shareholders' Representative, including but not limited to reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.-58-
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesAt the Closing, by adopting this Agreement ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative Representative. For purposes of this Agreement, the term “Shareholders’ Representative” shall mean the agent for and on behalf of the Selling Parties, with the authority Shareholders and Advisor to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to or from Buyer (on behalf of itself of any other Indemnified Person) relating to this Agreement, the Escrow Agreement, the Stock Purchase or any other transactions contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by such Shareholders or the Advisor individually); (ii) authorize deliveries to Buyer of cash from the Escrow Fund in satisfaction of claims for indemnification pursuant to Section 9.2 asserted by the Indemnified Party; (iii) object to such claims pursuant to Section 9.5(d); (iv) consent or agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with orders of courts with respect to, such claims; (v) consent or agree to and waivers in respect of any amendment to this Agreement and the Option Agreement, (ivvi) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. K Laser hereby accepts its appointment The Person serving as the Shareholders’ Representative. Such agency Representative may be changed replaced from time to time by the holders of a majority in interest of the shares of Everest of cash then on deposit in the Selling Parties from time to time Escrow Fund upon not less than ten (10) days’ prior written notice to all of the Selling Parties Escrow Agent and to Parent and PurchaserBuyer. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from , and the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except receive no compensation for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formhis services.
(b) The Shareholders’ Representative shall not be liable to any Shareholder or the Advisor for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence (and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith) and absence of negligencewithout gross negligence or willful misconduct. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it him harmless from and against any loss, liability or expense incurred without gross negligence negligence, willful misconduct or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Shareholders’ Representative. No provision of this Agreement shall require If not paid directly to the Shareholders’ Representative to expend by the Shareholders, such losses, liabilities or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative expenses may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken be recovered by the Shareholders’ Representative based on from cash, shares or other property in the Escrow Fund otherwise distributable to the Shareholders and the Advisor (and not distributed or distributable to an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) following the 18 month anniversary of the Closing Date pursuant to the terms hereof and of the Escrow Agreement, at the time of distribution, and such reliance shall recovery will be deemed conclusively made from the Shareholders and the Advisor according to have been taken in good faiththeir respective pro rata shares of the Escrow Fund.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIAny notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or any provision to the contrary set forth in this Agreement or the Option Agreementinstruction of, the Shareholders’ Representative shall only have that is within the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way scope of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in Representative’s authority under Section 11.2(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement Shareholders and the Option AgreementAdvisor and shall be final, (ii) alters binding and conclusive upon each such Shareholder and the consideration payable Advisor. The Escrow Agent and each Indemnified Party shall be entitled to rely upon any Selling Party pursuant such notice, communication, decision, action, failure to this Agreement act within a designated period of time, agreement, consent, settlement, resolution or the Option Agreementinstruction as being a notice or communication to or by, or (iii) adds a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (includinginstruction of, for each and every such Shareholder and the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesAdvisor.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties11.13.1 Each Shareholder hereby irrevocably appoints the Shareholders’ Representative as his, by adopting her or its attorney-in-fact and agent to take any and all action and to execute any and all documents on such Shareholder’s behalf with respect to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement other Transaction Documents and the Option transactions provided for herein or therein, including the making and execution of any amendments to this Agreement, (ii) to give and receive the giving of any notices and communicationspursuant hereto, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants compromise or settlement of any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency disputes which may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related hereafter arise pursuant to any action for which the Selling Parties’ consent is required under the terms provision of this Agreement or applicable lawany other Transaction Document or the transactions provided for herein or therein. Each Selling Party agrees This appointment is irrevocable and coupled with an interest and shall not be affected by the death, incapacity, illness, dissolution or other inability to receive correspondence from act of any of the Shareholders’ Representative, including in electronic form.
(b) . The Shareholders’ Representative shall hereby accepts such appointment.
11.13.2 Each Shareholder that is not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith a Trust hereby agrees joint and without negligence and any act done or omitted pursuant severally to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and to hold it the Shareholders’ Representative harmless against from any loss, liability or expense incurred without willful violation of the Law or gross negligence by the Shareholders’ Representative arising out of, or bad faith on in connection with, his duties as Shareholders’ Representative, including the part costs, fees and expenses incurred by the Shareholders’ Representative in defending against any claim or liability in connection therewith.
11.13.3 The Shareholders’ Representative shall and hereby agrees to serve without compensation.
11.13.4 The Shareholders’ Representative shall and hereby agrees to keep the Shareholders informed of all notices received by the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action all actions taken by the Shareholders’ Representative based on within a reasonable period of time after such reliance receipt or such action, as the case may be.
11.13.5 The Purchaser and the Escrow Agent shall be deemed able to rely conclusively to have been taken in good faith.
(c) Notwithstanding on the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, instructions and decisions of the Shareholders’ Representative as to any actions required or permitted to be taken by the Shareholders hereunder or the other Transaction Documents, and no Party shall only have any cause of action against the power Purchaser or authority to act with respect to matters pertaining the Escrow Agent to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way extent that either Purchaser or the Escrow Agent, respectively, has relied upon the instructions or decisions of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Shareholders’ Representative. (a) By approval of this Agreement ---------------------------- and the transactions contemplated hereby by the requisite percentage of the Shareholders under the California Code, the Shareholders designate Tira Capital Management, Inc., who hereby accepts such appointment (or, in the event that Tira Capital Management, Inc. is unable to serve or resigns, ▇▇▇▇▇ ▇▇▇) to be such Shareholder's representative for purposes of this Agreement (the "Shareholders' Representative"). The Shareholders shall be bound by any and all actions taken by the Shareholders' Representative on their behalf.
(a) The Selling Parties, Parent and Newco shall be entitled to rely upon any communication or writing given or executed by adopting the Shareholders' Representative. All communications or writings to be sent to Shareholders pursuant to this Agreement may be addressed to the Shareholders' Representative and any communication or writing so sent shall be deemed notice to all of the Shareholders hereunder. By approval of this Agreement and the transactions contemplated herebyhereby by the requisite percentage of the Shareholders under the California Code, hereby irrevocably appoint the Shareholders consent and constitute K Laser as agree that the Shareholders’ ' Representative for and is authorized to accept deliveries, including any notice, on behalf of the Selling Parties, with the authority Shareholders pursuant hereto.
(ib) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect By approval of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in transactions contemplated hereby by the judgment requisite percentage of the Shareholders’ Representative for Shareholders under the accomplishment ofCalifornia Code, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond ' Representative shall be required appointed and constituted the true and lawful attorney-in-fact of the Shareholders’ Representative. Notices each Shareholder, with full power in his or communications her name and on his or her behalf to or from the Shareholders’ Representative act according to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from in the absolute discretion of the Shareholders’ ' Representative, including and in electronic formgeneral to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Sections 2 and 10 of this Agreement. This power of attorney and all authority hereby and thereby conferred shall be granted subject to and coupled with the interest of the Shareholders and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder, by operation of law, whether by such Shareholder's death or any other event.
(bc) Notwithstanding the foregoing, the Shareholders' Representative shall inform each Shareholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by such Shareholders' Representative, and shall act as directed by the Shareholders holding a majority interest in the Escrow Property.
(d) The Shareholders’ ' Representative shall not be liable suffer any liability or loss for any act done performed or omitted to be performed by him in his capacity as Shareholders' Representative under this Agreement in the absence of gross negligence or willful misconduct. The Shareholders' Representative may consult with legal counsel in connection with his duties hereunder as the Shareholders’ Representative while acting and shall be fully protected by any act taken, suffered, permitted, or omitted in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel legal counsel.
(e) The Shareholders' Representative shall be conclusive evidence entitled to employ such legal counsel and other experts as he may deem necessary to advise him properly with respect to his rights and obligations hereunder and to evaluate claims and to pursue challenges to claims or to defend third party claims. The reasonable expenses and fees of such good faith legal counsel and, experts, and absence of negligence. The Selling Parties shall severally (and not jointly)any reasonable, according to each Selling Parties’ prodocumented out-rata interest in the shares of Everest, indemnify of-pocket expenses which the Shareholders’ ' Representative incurs under this Section 2.8 in relation to evaluating, challenging or contesting claims, shall be reimbursed solely by the Shareholders.
(f) The Shareholders shall indemnify, defend and hold it the Shareholders' Representative harmless from and against any and all loss, damage, tax, liability or and expense that may be incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and by him arising out of or in connection with the acceptance or administration of the Shareholder Representative's duties, except as caused by his duties hereunder. No provision gross negligence or willful misconduct, including the legal costs and expenses of this Agreement shall require the Shareholders’ Representative to expend defending himself against any claim or risk its own funds or otherwise incur any financial liability in the exercise or connection with his performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The as Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Shareholders’ Representative. 27.1 In order to efficiently administer the Transactions, each of the Holders, by executing the Letter of Transmittal, shall irrevocably appoint and designate, effective as at Completion, R▇▇▇▇ ▇▇▇▇▇▇▇▇ (Shareholders’ Representative) for the purpose of:
(a) The Selling Parties, taking all actions necessary or desirable to exercise the rights and fulfill the obligations of the Holders with respect to the Transactions as contemplated by adopting this Agreement;
(b) settling or agreeing any dispute or claim arising out of or related to this Agreement and each Transaction Document and giving any waivers, consents or other approvals required to be given by the transactions contemplated herebyCompany or the Holders (in whatever capacity, hereby irrevocably whether as Holders or otherwise) pursuant to this Agreement and each Transaction Document; and
(c) taking all actions and exercising all rights of the Holders pursuant to this Agreement and each Transaction Document.
27.2 The Holders may from time to time appoint and constitute K Laser as such other person to be the Shareholders’ Representative provided that such appointment shall not take effect until it has been notified to the Buyer in writing signed by such Holders who would have been, as at immediately prior to Completion, sufficient to provide Company Shareholder Approval.
27.3 In connection with the performance of its obligations under any Transaction Document, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Holders, attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as such Shareholders’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services under any Transaction Document (collectively, the Holder Costs). Neither the Buyer not the Company shall have any liability in respect of any Holder Costs incurred by the Shareholders’ Representative or any Holder pursuant to this clause 27.3.
27.4 Each of the Holders irrevocably:
(a) undertakes to the Buyer that the Shareholders’ Representative has and shall retain the authority to bind it in relation to each matter referred to in clause 27.1 (Relevant Matter);
(b) agrees that the Buyer shall be entitled to rely on any Notice or communication in writing provided by the Shareholders’ Representative in relation to any Relevant Matter as binding on it; and
(c) agrees that any Notice or communication in writing by the Shareholders’ Representative to the Buyer in relation to any Relevant Matter shall be deemed (unless the context requires otherwise) to be provided by the Shareholders’ Representative as agent for all of the Holders.
27.5 From and after Completion, the Buyer shall be entitled to rely conclusively on such decisions and actions taken by the Shareholders’ Representative on behalf of the Selling PartiesHolders and all actions, with the authority (i) to perform the obligations decisions and instructions of the Shareholders’ Representative set forth in this Agreement shall be final, conclusive and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of binding upon the Shareholders’ Representative for the accomplishment of. From and after Completion, any a decision, act, consent or all instruction of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic forman amendment, extension or waiver of this Agreement shall constitute a decision of the Holders and shall be final, binding and conclusive upon the Holders.
27.6 Each of the parties agrees (bi) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as that the Shareholders’ Representative while acting shall, save in good faith and without negligence and any act done or omitted pursuant the case of fraud by the Shareholders’ Representative, have no personal liability whatsoever to the advice Buyer or any of counsel shall be conclusive evidence the Holders in relation to the exercise of such good faith the powers and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify authorities conferred on the Shareholders’ Representative pursuant to this clause and hold it harmless against any loss(ii) the Buyer shall, save in the case of fraud by the Buyer, have no liability or expense incurred without gross negligence or bad faith on the part of whatsoever to the Shareholders’ Representative or the Holders in relation to the exercise of the powers and authorities conferred on the Shareholders’ Representative pursuant to this clause 27. Each of the Holders shall indemnify and hold the Shareholders’ Representative harmless from any and all liabilities, actions, proceedings, claims, costs, demands, damages and expenses (including legal fees) incurred or threatened arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative relating to expend or risk its own funds or otherwise incur any financial liability in resulting from the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers and authorities conferred on the Shareholders’ Representative herein pursuant to this clause 27 or this Agreement or its otherwise acting in good faith and in the Option Agreement shall not authorize or empower exercise of reasonable judgment, save in the case of fraud by the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Slinger Bag Inc.)
Shareholders’ Representative. (a) Each of the Shareholders agrees that ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is hereby designated as “Shareholders’ Representative” to represent each of the Shareholders for purposes of this Agreement, including prior to the Closing for the purposes set forth herein. All of the Shareholders agree that ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may appoint a successor Shareholders’ Representative at any time, and that any such successor Shareholders’ Representative shall have all of the rights and obligations pertaining to the Shareholders’ Representative as set forth in this Agreement. The Selling PartiesShareholders’ Representative shall have the following powers and duties: (i) to take such lawful actions and to incur such costs and expenses as the Shareholders’ Representative, by adopting in its sole discretion, deems necessary or advisable to safeguard the interests of the Shareholders in this Agreement and the transactions contemplated hereby; (ii) to compromise, hereby irrevocably appoint modify, settle, waive, relinquish, exchange, liquidate or otherwise resolve the rights of the Shareholders in and constitute K Laser to any amounts that are or may be payable after the Closing by Edesa hereunder, which compromise, modification, settlement, waiver, relinquishment, exchange, liquidation or resolution may include payment to the Shareholders of cash, property or any combination thereof; (iii) to employ accountants, investment banks, appraisers, and other experts, attorneys and such other agents as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority may deem advisable; (iiv) to perform incur fees, costs and expenses relating to the obligations of the Shareholders’ Representative set forth in this Agreement performance and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect implementation of this Agreement and the Option Agreementother Transaction Documents and the transactions contemplated hereby and thereby (including costs and expenses relating to third-party paying agents, wire expenses and other costs and expenses relating to the payment of any amounts due hereunder); (ivv) to retain legal counselexecute, accountantsdeliver and perform under this Agreement and the other Transaction Documents to which the Shareholders are party; (vii) subject to Section 11.3, consultants execute and deliver any or perform under any amendment or waiver to this Agreement and the other experts, Transaction Documents; and incur any other reasonable expenses, in connection with, and (viii) to take all lawful actions necessary or appropriate in the judgment of which the Shareholders’ Representative for the accomplishment of, any deems necessary or all of advisable in order to carry out the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the The Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable lawserve without compensation. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Shareholders for the performance of any act done or omitted hereunder failure to act so long as the Shareholders’ Representative while acting it acted (or failed to act) in good faith within what it reasonably believed to be the scope of its authority and without negligence and any act done or omitted pursuant for a purpose which it reasonably believed to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares best interests of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part .
(b) The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and arising out of or in connection with the acceptance or administration of his duties hereunderis hereby irrevocable. No provision The provisions of this Section 6.19 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest, are given primarily for a business or commercial purpose, shall survive the death, disability, incapacity, bankruptcy, dissolution or liquidation of each Shareholder, and are granted by each of the Shareholders to the Shareholders’ Representative, and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Shareholder.
(c) The Shareholders’ Representative shall act for the Shareholders on all of the matters set forth in this Agreement shall require and the transactions contemplated hereby in the manner the Shareholders’ Representative believes in good faith to expend or risk its own funds or otherwise incur any financial liability be in the exercise or performance best interest of any of the Shareholders and consistent with its powers, rights, duties or privileges obligations under this Agreement on behalf of any Selling PartiesAgreement. The Shareholders’ Representative shall not be responsible to the Shareholders for any damages they may in good faith rely conclusively upon suffer by reason of the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken performance by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithof the powers, authority and duties of the Shareholders’ Representative under this Agreement, other than loss or damage arising from a willful and knowing violation of the Law or this Agreement by the Shareholders’ Representative.
(cd) Notwithstanding Each Shareholder agrees to indemnify and hold harmless the foregoing provisions in Shareholders’ Representative from, and promptly reimburse the Shareholders’ Representative for, any loss, damage, fees, costs or expenses arising from the performance of the powers, authority and duties of the Shareholders’ Representative hereunder, including the reasonable cost of any legal counsel or accountants retained by the Shareholders’ Representative on behalf of the Shareholders or otherwise, but excluding any loss or damage arising from a willful and knowing violation of the Law or this ARTICLE VIIIAgreement by the Shareholders’ Representative.
(e) All actions, decisions and instructions of the Shareholders’ Representative taken, made or any provision given pursuant to the contrary set forth in power or authority granted to the Shareholders’ Representative pursuant to this Section 6.19 shall be conclusive and binding upon each Shareholder, and no Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same. Each of Stellar and Edesa shall be entitled to rely solely on the Shareholders’ Representative with respect to any action or decision required to be made, taken, agreed to or consented to by the Shareholders under this Agreement or the Option Agreementother Transaction Documents. Any action or decision taken or made by Stellar or Edesa under this Agreement or the other Transaction Documents with the consent or agreement of, or at the request of, the Shareholders’ Representative shall only have the power or authority to act be deemed approved, consented to, conclusive and binding on all Shareholders, regardless of whether any such Shareholder was provided with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase notice of any Selling Party’s indemnity such action or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesdecision.
Appears in 1 contract
Sources: Share Exchange Agreement (Stellar Biotechnologies, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Each Shareholder hereby irrevocably appoint appoints R▇▇▇▇▇ ▇. ▇▇▇▇▇ as its sole, exclusive, true and constitute K Laser as the lawful agent, representative and attorney-in-fact (“Shareholders’ Representative Representative”) to act for and on behalf of the Selling PartiesShareholders, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementincluding, (ii) without limitation, to give and receive notices and communications, (iii) to act on behalf of the Shareholders with respect to any matters arising under this Agreement, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expensescommence, in connection withprosecute, participate in, settle, dismiss or otherwise terminate, as applicable, lawsuits and claims, mediation and arbitration proceedings, and to comply with orders of courts and awards of courts, mediators and arbitrators with respect to such suits, claims or proceedings, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment Shareholders’ Representative shall for all purposes be deemed the sole authorized agent of the Shareholders until such time as the Shareholders’ Representativeagency is terminated. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all Buyers; provided, however, that Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties SCA Shares as of the date hereof agree to such removal and to Parent and Purchaserthe identity of the substituted Shareholders’ Representative. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the SCA Shares as of the date hereof. No bond shall be required of the Shareholders’ Representative, and Shareholders’ Representative shall not receive compensation for his services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which Shareholders during the Selling Parties’ consent is required under term of the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formagency.
(b) The Shareholders’ Representative shall not incur any liability with respect to any action taken or suffered by it or omitted hereunder as Shareholders’ Representative while acting as Shareholders’ Representative. Shareholders’ Representative may, in all questions arising hereunder, rely on the advice of counsel and other professionals and for anything done, omitted or suffered by Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the to anyone. Shareholders’ Representative while acting undertakes to perform such duties and only such duties as are specifically set forth in good faith this Agreement and without negligence and any act done no other covenants or omitted pursuant to the advice of counsel obligations shall be conclusive evidence implied under this Agreement against Shareholders’ Representative; provided, however, that the foregoing shall not act as a limitation on the powers of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold determined by it harmless against any loss, liability or expense incurred without gross negligence or bad faith on to be reasonably necessary to carry out the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any purposes of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithobligations.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have reasonable access to information about the power or authority to act with respect to matters pertaining to the Selling Parties as a group Acquired Company and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Buyers and the powers conferred on reasonable assistance of the Acquired Company’s officers and employees for purposes of performing his duties and exercising his rights hereunder, provided that Shareholders’ Representative herein shall treat confidentially and in not disclose any nonpublic information from or about the Option Agreement shall not authorize Acquired Company or empower the Buyers to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) A decision, act, consent or instruction of Shareholders’ Representative to do shall constitute a decision, act, consent or cause to instruction of all the Shareholders and shall be done final, binding and conclusive upon each such Shareholder. Buyers may rely upon any action (including by amendingsuch decision, modifying act, consent or waiving any provision instruction of this Agreement Shareholders’ Representative as being the decision, act, consent or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase instruction of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevery such Shareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. In order to administer efficiently the implementation of this Agreement, by executing and delivering this Agreement, the Company Shareholders hereby appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as their representative (the “Shareholders’ Representative”).
(a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Company Shareholders hereby irrevocably appoint and constitute K Laser as authorize the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform take all necessary action in connection with the obligations implementation of the Shareholders’ Representative set forth in this Agreement Section 1.5 and the Option AgreementArticle IX hereof, (ii) to give take all actions under the Escrow Agreement and receive notices and communications, (iii) to agree to, negotiate, enter into give and provide amendments and supplements receive all notices required to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required given under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formEscrow Agreement.
(b) The Shareholders’ Representative may be removed and a successor appointed by the action of not less than two-thirds of the Company Shareholders upon written notice to Parent, and such successor shall not be liable for any act done or omitted hereunder as deemed to be the Shareholders’ Representative while acting for all purposes of this Agreement; provided however, that no change in good faith the Shareholders’ Representative shall be effective until such written notice is delivered to Parent.
(c) The Company Shareholders agree that:
(i) Parent shall be authorized to rely conclusively on the written instructions and without negligence decisions of the Shareholders’ Representative as to any actions required or permitted to be taken by the Company Shareholders or the Shareholders’ Representative under Section 1.5 and Article IX of this Agreement and the Escrow Agreement, and none of such Company Shareholders shall have any act done cause of action against Parent for any action taken by Parent in reliance upon such written instructions or omitted pursuant decisions of the Shareholders’ Representative;
(ii) All written decisions and instructions of the Shareholders’ Representative in relation to Section 1.5 and Article IX hereof and the advice of counsel Escrow Agreement shall be conclusive evidence and binding on all of the Company Shareholders and no Company Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same or any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under Section 1.5 or Article IX hereof and the Escrow Agreement; except for any of the foregoing constituting gross negligence, fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) Remedies available at law for any breach of the provisions of this Section 1.11 are inadequate; therefore Parent shall be entitled to temporary and permanent injunctive relief relating to any such good faith breach without the necessity of proving damages if Parent brings an action to enforce the provisions of this Section 1.11;
(iv) The provisions of this Section 1.11 are independent and absence severable, shall constitute an irrevocable power of negligence. The Selling Parties shall severally (attorney, coupled with an interest and not jointly)surviving death or legal incapacity, according granted by each Company Shareholder to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any lossshall be binding upon the executors, liability or expense incurred without gross negligence or bad faith on the part heirs, personal representatives and successors of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. each Company Shareholder.
(d) The Shareholders’ Representative may in good faith rely conclusively upon the informationshall not have any duties, reports, statements and opinions prepared responsibilities or presented by counsel or other professionals retained by itauthority except those expressly set forth herein, and any action taken no implied covenants, duties, obligations, authority or liabilities shall be implied by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithappointment hereunder.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (FusionStorm Global, Inc.)
Shareholders’ Representative. (a) The Selling PartiesShareholders, by adopting entering into this Agreement and the transactions contemplated herebyTransactions, hereby irrevocably appoint John ▇▇▇▇▇▇▇▇▇ (▇▇e "Shareholders' Representative") as their agent and constitute K Laser as attorney-in-fact for purposes of this Agreement, and consent to the taking by the Shareholders’ ' Representative for of any and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) be taken by FFPE Holding or Shareholders pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsEBITDA Adjustment Guidelines attached hereto as Exhibit 26, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Company Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby , and John ▇▇▇▇▇▇▇▇▇ ▇▇▇eby accepts its his appointment as the Shareholders’ Representative' Representative for purposes of this Section 10.19. Such agency may Purchaser shall be changed entitled to deal exclusively with the Shareholders' Representative on all matters relating to this Section 10.19, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the holders Shareholders' Representative, and on any other action taken or purported to be taken on behalf of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of any Shareholder by the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ ' Representative, including in electronic formas fully binding upon such Shareholder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: LLC Membership Interest Purchase Agreement (Sizzler International Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each Shareholder irrevocably authorizes and the transactions contemplated hereby, hereby irrevocably appoint appoints each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and constitute K Laser ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the Shareholders’ Representative for (and on behalf by execution of the Selling Partiesthis Agreement, each of such individuals hereby accepts such appointment), with the authority (i) full power of substitution and resubstitution, as such Shareholder’s representative and true and lawful attorney-in-fact and agent to perform the obligations of the Shareholders’ Representative act in such Shareholder’s name, place and stead as set forth in this Agreement and to execute in the Option name and on behalf of such Shareholder any documents to be delivered by the Shareholders in connection with this Agreement. The Shareholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative. Each individual serving as the Shareholders’ Representative may act independently of the other on behalf of all Shareholders.
(b) Each of the Shareholders agrees that the Shareholders’ Representative shall have the full power, authority and right to perform, do and take any and all actions he deems necessary or advisable to carry out the purposes of this Agreement. In particular, but not by way of limitation, the Shareholders’ Representative has the power to (i) make and carry out decisions and exercise any and all rights of the Shareholders under this Agreement and any Transaction Document on behalf of each Shareholder and to sign documents and make filings on behalf of each Shareholder as if such Shareholder had itself signed or filed such document, (ii) to give consummate the transactions contemplated by this Agreement and receive notices and communicationsthe Transaction Documents, (iii) receive and deliver to the Purchaser surrendered certificates representing the Shares, (iv) communicate to, and receive all communications and notices from, the Purchaser, (v) sign documents and make filings on behalf of each Shareholder as if such Shareholder had itself signed or filed such document, (vi) subject to the limitations set forth in Article VII, negotiate, settle, compromise, make payments in respect of and otherwise handle all claims for indemnification made by the Purchaser hereunder, (vii) agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements commence, prosecute, participate in, settle, dismiss or otherwise terminate, as applicable, any litigation, action, proceeding or investigation relating to Company, the Shares, the Shareholders, this Agreement, the Transaction Documents or any of the transactions contemplated by this Agreement or the Transaction Documents, and waivers comply with orders of courts and awards of courts, mediators and arbitrators with respect to such litigation, action, proceeding or investigation, (viii) retain attorneys, accountants and other professional service providers to assist and advise him with respect to his duties hereunder, (ix) make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings relating to the foregoing, and, in respect general and (x) do any and all things and take any and all actions that the Shareholders’ Representative, in its sole discretion, may consider necessary, proper or convenient in connection with, or to carry out on behalf of the Shareholders, the transactions contemplated by this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Transaction Documents. The Shareholders’ Representative shall establish an account for receipt of the accomplishment ofPurchase Price and any other amounts due to the Shareholders from the Purchaser pursuant to the terms of this Agreement, and shall authorize any payments due to any or all of the foregoing. K Laser hereby accepts its appointment as Shareholders pursuant to this Agreement to be paid from such account by wire transfer in immediately available funds to the accounts designated by each Shareholder, promptly after delivery of any payments from the Purchaser to the account established by the Shareholders’ Representative. Such agency may be changed If specifically requested by the holders of a majority in interest Shareholders who hold at least 75% of the shares of Everest of Shares prior to the Selling Parties from time to time upon not less than ten Closing (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the “Required Shareholders’ Representative. Notices or communications to or from ”), the Shareholders’ Representative shall also have the power to Parent amend, modify or waive any agreement (including this Agreement) in the name of each Shareholder as if such Shareholder had itself amended, modified or waived such agreement (and regardless of whether the particular Shareholder in fact requested that the Shareholders’ Representative enter into such amendment, modification or waiver); provided, however, that, notwithstanding anything to the contrary, the Shareholders’ Representative shall constitute notice have no power to amend any term of this Agreement which would change (i) the consideration to be received by the Shareholders or from each (ii) the relative indemnification obligations of the Selling PartiesShareholders. The Shareholders’ Representative shall have all of the rights and powers which Shareholders would otherwise have, except and Shareholders agree that the Purchaser shall be entitled to rely exclusively upon all actions taken or omitted to be taken by the Shareholders’ Representative (acting either jointly or individually) pursuant to this Agreement and any of the foregoing matters. The Shareholders’ Representative shall for notices related all purposes hereunder be deemed the sole authorized agent of the Shareholders until such time as the agency is terminated pursuant to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formSection 2.4(g).
(bc) The Shareholders’ Representative shall not be liable for entitled to rely, and shall be fully protected in relying, on any act done statements furnished to him by any Shareholder or omitted hereunder as the Purchaser, or on any other evidence deemed by the Shareholders’ Representative while acting to be reliable. The Shareholders’ Representative shall be fully justified in good faith failing or refusing to take any action under this Agreement unless he shall have received such advice or concurrence of the Shareholders as he deems appropriate or unless he shall have been expressly indemnified to his satisfaction by the Shareholders severally and without negligence on a Pro Rata Portion basis against any and all liability and expense that it may incur by reason of taking or continuing to take any such action. The Shareholders’ Representative shall in all cases be fully protected in acting, or refraining from acting, under this Agreement in accordance with a request of the Required Shareholders, subject to Section 2.4(b), and such request, and any such action taken or failure to act done or omitted pursuant to the advice of counsel thereto, shall be conclusive evidence binding on all the Shareholders. For the avoidance of such good faith doubt, neither the Purchaser nor any of its affiliates shall be under any obligation: (i) to indemnify and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold the Shareholders’ Representative and hold it Representative, in his capacity as such, harmless against any loss, liability or expense damages incurred without gross negligence or bad faith on the part of by the Shareholders’ Representative and Representative, in such capacity, arising out of or in connection with the acceptance or administration of his the duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative hereunder or under any other Transaction Documents; or (ii) to expend cover any out-of-pocket costs and expenses incurred by the Shareholders’ Representative, in such capacity, in connection with actions taken by the Shareholders’ Representative, in such capacity, pursuant to the terms of this Agreement or risk its own funds any other Transaction Documents; provided, however, that the foregoing shall in no way affect or otherwise incur limit any financial liability of the provisions of Article VII, including Parent’s and the Purchaser’s obligations to indemnify the Shareholders for any and all Losses, including any indemnifiable costs and expenses of the Shareholders’ Representative pursuant to Article VII.
(d) The Shareholders’ Representative shall not be liable to the Shareholders for any error of judgment, or any action taken or omitted to be taken hereunder, except in the exercise case of his bad faith, gross negligence or performance willful misconduct, as determined by a court of competent jurisdiction. The Shareholders’ Representative shall be entitled to consult with counsel of his choosing and shall be fully protected against liability to any Shareholder in any act taken, suffered or permitted by him in good faith in accordance with the advice of its powerscounsel.
(e) The Shareholders’ Representative shall not be paid any fee for services to be rendered hereunder. All reasonable out-of-pocket fees and expenses incurred by the Shareholders’ Representative in performing his duties hereunder shall be reimbursed severally and on a Pro Rata Portion basis by the Shareholders; provided, rightshowever, duties or privileges that, to the extent practical and permitted under this Section 2.4(e), the Shareholders’ Representative shall deduct such fees and expenses from the amounts otherwise distributable to the Shareholders under this Agreement. In particular, the Shareholders’ Representative shall hold back the sum of $100,000 from amounts otherwise distributable to the Shareholders under this Agreement (the “Holdback Amount”) for a period of 90 days from the date of this Agreement, to be used (i) first, to satisfy any obligations for Transaction Expenses or Indebtedness, in each case not listed on behalf the Closing Certificate, and (ii) thereafter, to satisfy any administrative expenses the Shareholders’ Representative may incur in such capacity. Following the date that is 90 days from the date of this Agreement, the Shareholders’ Representative may continue to hold any remaining funds from the Holdback Amount until such time as the Shareholders’ Representative determines, in the Shareholders’ Representative’s sole discretion, that no such additional administrative expenses will be incurred by the Shareholders’ Representative in connection with the performance of its obligation hereunder and, at the time of such determination and after subtracting any administrative expenses from the Holdback Amount, the Shareholders’ Representative shall deliver any remaining funds from the Holdback Amount to the Shareholders on a Pro Rata Portion basis.
(f) The Shareholders agree, severally and on a Pro Rata Portion basis, to indemnify and hold the Shareholders’ Representative harmless against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation, attorneys’ fees and disbursements) that may be imposed on the Shareholders’ Representative or incurred by the Shareholders’ Representative in connection with the performance of his duties under this Agreement, including any litigation arising from this Agreement or involving its subject matter, unless such loss, liability, claim or expense shall have been determined by a court of competent jurisdiction to be a result of the Shareholders’ Representative’s bad faith, gross negligence or willful misconduct. Anything in this Agreement to the contrary notwithstanding, in no event shall the Shareholders’ Representative be liable to the Shareholders for special, indirect or consequential loss or damage of any Selling Partieskind whatsoever, even if the Shareholders’ Representative has been advised of the likelihood of such damages and regardless of the form of action.
(g) The Shareholders’ Representative may resign at any time. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented be removed at any time by counsel or other professionals retained a writing signed by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.the
Appears in 1 contract
Sources: Stock Purchase Agreement (Blount International Inc)
Shareholders’ Representative. (a) The Selling PartiesEach Seller hereby appoints and empowers effective from and after the date of this Agreement, the Shareholders’ Representative, for the benefit of the Sellers as the exclusive agent and attorney-in-fact to act on behalf of each Seller, in connection with and to facilitate the consummation of the transactions contemplated by adopting this Agreement, including pursuant to the Ancillary Agreements to which a Seller is a party, which shall include the power and authority:
(i) to execute and deliver the Ancillary Agreements and any share transfer deeds to which a Seller is a party (with such modifications or changes therein as to which the Shareholders’ Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, determines to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the Ancillary Agreements to which a Seller is a party and the consummation of the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser thereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable;
(iii) to apply the Consideration to the payment of (or reimbursement of the Shareholders’ Representative for) expenses and liabilities which the Shareholders’ Representative may actually incur in the performance of its duties pursuant to this Agreement or the Ancillary Agreements to which a Seller is a party or to the acquisition of the minority interests in the Subsidiaries set forth on Section 6.3(b) of the Company Disclosure Letter;
(iv) if one or more Sellers indemnifies or otherwise makes any payment in excess of its pro rata share with respect to any pro rata obligations under this Agreement, to require the other Sellers to pay, on a pro rata basis, or apply payments owed to all of the Sellers, on a pro rata basis, to reimburse such Seller(s) who paid in excess of its pro rata share, to the extent of such excess;
(v) as the Shareholders’ Representative, to enforce and protect the rights and interests of the Sellers and to enforce and protect the rights and interests of all Sellers arising out of or under or in any manner relating to this Agreement and the Ancillary Agreements, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under either of the this Agreement or the Ancillary Agreements for and on behalf of the Selling PartiesSellers, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, Purchaser, the authority Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) to perform the obligations of assert or institute any Action; (B) investigate, defend, contest or litigate any Action initiated by Parent, Purchaser or any other Person, or by any Governmental Entity against the Shareholders’ Representative set forth in this Agreement and and/or any of the Option AgreementSellers and/or the Escrow Account, (ii) to give and receive notices process on behalf of any or all Sellers in any such Action and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary compromise or appropriate in the judgment of settle on such terms as the Shareholders’ Representative for the accomplishment ofshall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or all investigation; (C) file any proofs of the foregoing. K Laser hereby accepts its appointment debt, claims and petitions as the Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten deem advisable or necessary; (10D) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices settle or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to compromise any action for which the Selling Parties’ consent is required Actions asserted under the terms of either this Agreement or applicable law. Each Selling Party agrees to receive correspondence the Ancillary Agreements; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action, it being understood that the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable have any obligation to take any such actions, and shall not have any liability for any act done failure to take any such actions;
(vi) to refrain from enforcing any right of the Sellers or omitted hereunder as any of them and/or the Shareholders’ Representative while acting arising out of or under or in good faith and without negligence and any manner relating to this Agreement, the Ancillary Agreements; provided, however, that no such failure to act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative, except as otherwise provided in this Agreement or in the Ancillary Agreement, as applicable, shall be deemed a waiver of any such right or interest by the Shareholders’ Representative or by the Sellers unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative;
(vii) 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 Shareholders’ 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 the Ancillary Agreements; and
(viii) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Sellers in connection with any matter arising out of under this Agreement or the Ancillary Agreements as the Shareholders’ Representative deems appropriate.
(b) (i) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Sellers, for expenses, charges and Losses incurred in connection with the acceptance performance of its services hereunder and for Losses as provided below, which expenses, charges, Losses shall first be paid or administration of his duties hereunder. No provision of this Agreement reimbursed from any Consideration otherwise distributable to Sellers hereunder (in which case Parent shall require cause Purchaser to, and Purchaser shall, first pay such amounts to the Shareholders’ Representative on demand therefor and thereafter distribute any remaining amounts to expend or risk its own funds or otherwise incur any financial liability in Sellers); provided, however, that Parent shall cause Purchaser to, and Purchaser shall, only pay such amounts as, at the exercise or performance times and to the extent that payments of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling PartiesConsideration are made to the Sellers. The Shareholders’ Representative may in good faith rely conclusively upon the informationalso retain a portion of any cash Consideration to fund expenses, reports, statements charges and opinions prepared or presented by counsel or other professionals retained by it, and any action taken Losses incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in connection with this ARTICLE VIIISection 6.15, or with any provision excess being delivered to the contrary set forth in this Agreement or the Option Agreement, Sellers at such time as the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group determine. For purposes of all calculations of Consideration, any reimbursement and not matters pertaining to an individual Selling Party (for example but not by way other requests of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and Section 6.15(b)(i) shall be deducted from the Option Agreement, (ii) alters aggregate amount to be paid at any given time prior to determining the consideration payable to any Selling Party allocation of such payments pursuant to this Agreement or the Option Agreement, or (iiiSection 2.2(a) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Disclosure Letter.
Appears in 1 contract
Sources: Share Purchase Agreement (Watson Pharmaceuticals Inc)
Shareholders’ Representative. (a) The Selling PartiesUpon the closing of the Merger, by adopting this Agreement ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be constituted and appointed as agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the "Shareholders’ Representative ' Representative") for and on behalf of the Selling Parties, with the authority (i) to perform the obligations each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Shareholders to give and receive notices and communications, (iii) to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to Claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the holders vote of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Partiesreceive no compensation for its services, except for notices related to any action for which payment by the Selling Parties’ consent is required under the terms Shareholders of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from expenses, including fees of counsel, reasonably incurred by the Shareholders’ Representative, including ' Representative in electronic formconnection with the performance of its duties hereunder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it such agent harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIA decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group decision of all Shareholders and not matters pertaining to an individual Selling Party (for example but not by way of limitationshall be final, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)binding and conclusive upon each Shareholder, and the powers conferred on Parent may rely upon any decision, act, consent or instruction of the Shareholders’ ' Representative herein taken in such manner as being the decision, act, consent or instruction of each and every Shareholder. Parent is hereby relieved from any liability to any person for any acts done by them in the Option Agreement shall not authorize accordance with such decision, act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Shareholders’ Representative. Upon consummation of the Merger, each ---------------------------- of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇. ▇. ▇▇▇▇, ▇▇., acting individually (aeach, a "Shareholders' Representative"), shall be irrevocably constituted and appointed as the true and lawful agent and attorney-in-fact of each Shareholder, Continent Right holder and Company Stock Option holder, (other than any holder of Dissenting Shares) The Selling Parties(each a "Securityholder" and together the "Securityholders"), each with full powers of substitution to act individually in the name, place and stead of each Securityholder with respect to the transactions contemplated by adopting this Agreement Agreement, as the same may be from time to time amended, and to individually do or refrain from doing all such further acts and things, and to execute all such documents, as he shall deem necessary or appropriate in connection with any of the transactions contemplated hereby, hereby irrevocably appoint including the power to execute and constitute K Laser as deliver all ancillary agreements, certificates, and documents which the Shareholders’ ' Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions deems necessary or appropriate in connection with the consummation of the transactions contemplated hereby;
(a) to receive and receipt for all payments made by Merger Partner to Securityholders under this Agreement;
(b) to agree upon or compromise any matter related to the Final Closing Statement and any adjustments to the Merger Consideration or other calculations or payments to be made pursuant to Article I of this Agreement;
(c) to act for Securityholders with respect to all indemnification matters referred to in this Agreement, including the right to compromise on behalf of Securityholders any indemnification claim made by or against the Securityholders;
(d) to terminate, amend, or waive any provision of this Agreement; provided that any such action, if material to the rights and obligations of Securityholders in the reasonable judgment of the Shareholders’ Representative for ' Representative, shall be taken in the accomplishment ofsame matter with respect to all Securityholders, unless otherwise agreed by each Securityholder who is subject to any or all disparate treatment of a potentially adverse nature;
(e) to employ and obtain the foregoing. K Laser hereby accepts its appointment advice of legal counsel, accountants and other professional advisors as the Shareholders’ ' Representative. Such agency may be changed by , in his sole discretion, deems necessary or advisable in the holders performance of a majority in interest his duties as Shareholders' Representative and to rely on their advice and counsel;
(f) to incur and pay out of the shares Merger Consideration expenses, including fees of Everest brokers, attorneys and accountants incurred pursuant to the Merger and the other transactions contemplated hereby, and any other fees and expenses allocable or in any way relating to such transaction or any indemnification claim, whether incurred prior or subsequent to Closing;
(g) to retain a portion of the Selling Parties Merger Consideration as a reserve against the payment of expenses incurred in his capacity as Shareholders' Representative; and
(h) to do or refrain from time doing any further act or deed on behalf of Securityholders which the Shareholders' Representative deems necessary or appropriate in his sole discretion relating to time upon not less than ten (10) days’ prior written notice to all the subject matter of this Agreement as fully and completely as any of the Selling Parties Securityholders could do if personally present and to Parent and Purchaseracting. No bond shall be required The appointment of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Partiesbe deemed coupled with an interest and shall be irrevocable, except for notices related to and Merger Partner, Media Communications and any other person may conclusively and absolutely rely, without inquiry, upon any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out ' Representatives as the act of or Securityholders in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative all matters referred to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or any other document contemplated hereby. Upon consummation of the Option AgreementMerger, each of the Securityholders shall be deemed to have ratified and confirmed all that the Shareholders’ Representative ' Representatives shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision virtue of their appointment as Shareholders' Representatives of such Securityholder. Each of the Shareholders' Representatives shall act for Securityholders on all of the matters set forth in this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner that he considers appropriate in his sole discretion, and the Shareholders' Representatives shall not be responsible to any Securityholder (or to Merger Partner, Media Communications or the Company or any other party hereto) for any loss or damage any Securityholder may suffer by reason of the performance by the Shareholders' Representatives of their duties under this Agreement, other than as permitted pursuant to this Agreement and loss or damage arising from willful violation of law or gross negligence in the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase performance of any Selling Party’s indemnity or other obligations or liabilities his duties under this Agreement (includingAgreement. If all of the Shareholders' Representatives resign or cease to function in such capacity for any reason whatsoever, then the successor Shareholders' Representative shall be the person which a majority of the remaining Securityholders appoint; provided, however, that if for the avoidance of doubtany reason no successor has been appointed within 15 days, any change Securityholder shall have the right to petition the nature court of competent jurisdiction for appointment of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuccessor Shareholders' Representative.
Appears in 1 contract
Sources: Merger Agreement (Media General Inc)
Shareholders’ Representative. (a) The Selling PartiesBy voting in favor of or consenting to the Merger or by surrendering or delivering to the Paying Agent or the Company (or its designee payroll service provider), by adopting as applicable, an executed Letter of Transmittal (including the release set forth in Section 2.8(f)) in exchange for the consideration to be paid in accordance with this Agreement, each Company Holder irrevocably approves the depositing of the funds held in the Shareholders’ Representative Fund and the constitution and appointment of, and hereby irrevocably constitutes and appoints Shareholder Representative Services LLC, a Colorado limited liability company, as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Company Holders and each of them (the “Shareholders’ Representative”) for all purposes and with respect to any and all matters relating to, arising out of, or in connection with, this Agreement and any agreements ancillary hereto, including for purposes of taking any action or omitting to take any action on behalf of each Company Holder hereunder to:
(i) execute and deliver this Agreement and all amendments, waivers, ancillary agreements, certificates and documents that the Shareholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated herebyby this Agreement and any agreements ancillary hereto;
(ii) receive and administer the Shareholders’ Representative Fund as set forth herein;
(iii) do or refrain from doing any further act or deed on behalf of the Company Holders that the Shareholders’ Representative deems necessary or appropriate in its discretion relating to the subject matter of this Agreement as fully and completely as the Company Holders could do if personally present;
(iv) administer the defense or settlement of any disputes regarding the Closing Payment adjustment pursuant to Section 2.12 and agreeing to or negotiating the Final Closing Balance Sheet and Final Closing Payment;
(v) administer the defense or settlement of any disputes regarding any Milestone Payments pursuant to Section 2.13;
(vi) administer the defense or settlement of any disputes regarding any Indemnity Claim pursuant to Article 6;
(vii) give any written direction to the Paying Agent;
(viii) give or receive notices to be given or received by the Company Holders under this Agreement and any agreements ancillary hereto (except to the extent that this Agreement or any agreements ancillary hereto expressly contemplate that any such notice shall be given or received by each Company Holder individually); and
(ix) receive service of process in connection with any claims under this Agreement and any agreements ancillary hereto.
(b) All actions, hereby irrevocably notices, communications and determinations by or on behalf of the Company Holders shall be given or made by the Shareholders’ Representative and all such actions, notices, communications and determinations by the Shareholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all Company Holders, and no Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the rights and obligations of the Company, Buyer and Merger Sub under this Agreement, the Shareholders’ Representative shall be entitled to: (i) rely upon the Estimated Closing Statement, Allocation Schedule, the Transaction Expense Schedule, the Closing Indebtedness Schedule and the CoC Payment Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Holder.
(c) The Shareholders’ Representative may resign at any time. If the Shareholders’ Representative resigns, dies or becomes legally incapacitated, then a majority of the Company Holders and the applicable recipients of the Change of Control payments, based on their respective Pro Rata Percentages, shall promptly designate in writing to Buyer a single Person to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or the Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. A majority of the Company Holders and constitute K Laser the applicable recipients of the Change of Control payments, based on their respective Pro Rata Percentages, may also replace the Person serving as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time and for any reason upon not less than at least ten (10) days’ prior written notice to Buyer.
(d) The Shareholders’ Representative shall act for the Company Holders on all of the Selling Parties and matters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to Parent and Purchaserbe in the best interest of the Company Holders. No bond shall The Shareholders’ Representative is authorized to act on behalf of the Company Holders notwithstanding any dispute or disagreement among the Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Shareholders’ Representative reasonably believes to be required authorized thereunto. The Shareholders’ Representative will incur no liability of any kind with respect to any action or omission by the Shareholders’ Representative in connection with the Shareholders’ Representative. Notices or communications ’s services pursuant to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative’s bad faith, including in electronic form.
(b) gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally Company Holders and the applicable recipients of the Change of Control Payments (severally, and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everestaccordance with their respective Pro Rata Percentages) will indemnify, indemnify defend and hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Company Holders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Fund, after payment of any amount required pursuant to Section 2.12(f)(iii), (ii) the amounts payable to the Company Holders and the applicable recipients of the Change of Control Payments pursuant to Section 2.12(f)(ii) at such time as such amounts would otherwise be distributable to the Company Holders and the applicable recipients of the Change of Control Payments, (iii) the amounts in the Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Holders and the applicable recipients of the Change of Control Payments and (iv) any Milestone Payments at such time as any such amounts would otherwise be distributable to the Company Holders and the applicable recipients of the Change of Control Payments; provided, that while this section allows the Shareholders’ Representative to expend be paid from the aforementioned sources of funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or risk incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Company Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any Selling Partiesrestrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this section. The foregoing exculpation and indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. Except for this Agreement and any agreements ancillary hereto, the Shareholders’ Representative has not entered into any Contract, arrangement or understanding with the Company or any Company Holder, and the Company Holders do not have any requirements, prerequisites or veto rights in connection with the Shareholders’ Representative’s fulfillment of its obligations or exercise of its rights under this Agreement.
(e) The Shareholders’ Representative shall treat confidentially any nonpublic information disclosed to it pursuant to this Agreement and shall not use such nonpublic information other than in the performance of its duties as the Shareholders’ Representative. In addition, the Shareholders’ Representative shall not disclose any nonpublic information disclosed to it pursuant to this Agreement to anyone except as required by Law; provided that (i) the Shareholders’ Representative may disclose such nonpublic information to employees, legal counsel, advisors, agents and consultants of the Shareholders’ Representative and to the Company Holders, in good faith rely conclusively upon the each case who have a need to know such information, reports, statements provided that such persons are under an obligation of confidentiality and opinions prepared non-use in its capacity as such and (ii) the Shareholders’ Representative (or presented by legal counsel or other professionals retained advisor to whom information is disclosed pursuant to clause (i) above) may disclose such nonpublic information disclosed to the Shareholders’ Representative pursuant to this Agreement in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor).
(f) Buyer shall be entitled to rely on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of the Company Holders for all purposes under this Agreement and shall have no liability for any such reliance. No Company Holder may revoke the authority of the Shareholders’ Representative except as set forth in Section 2.9(b). Each Company Holder, by itvoting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to the Paying Agent or the Company (or its designee payroll service provider), as applicable, along with an executed Letter of Transmittal (including the release set forth in Section 2.8(f)) hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative based on in the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.9, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive (i) the death, bankruptcy, liquidation, incapacity or incompetence of such reliance shall be deemed conclusively to have been taken Company Holder and (ii) the delivery of an assignment by any Company Holder of the whole or any fraction of his, her or its interest in good faithany Milestone Payment.
(cg) Notwithstanding At the foregoing provisions Closing, Buyer shall pay the Shareholders’ Representative Fund Amount to the Shareholders’ Representative, which shall be maintained by the Shareholders’ Representative in this ARTICLE VIIIa segregated account (the aggregate amount of cash so held by the Shareholders’ Representative from time to time, the “Shareholders’ Representative Fund”). The Shareholders’ Representative will hold these funds separate from its funds, will not use these funds for its operating expenses or any provision other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Fund and the Company Holders irrevocably transfer and assign to the contrary set forth Shareholders’ Representative any ownership right that they may have in any interest or other earnings that may accrue on funds held in the Shareholders’ Representative Fund. The Company Holders acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice. The Shareholders’ Representative shall have no responsibility or liability for any loss of principal of the Shareholders’ Representative Fund other than as a result of its bad faith, gross negligence or willful misconduct. For Tax purposes, the Shareholders’ Representative Fund shall be treated in accordance with Section 5.1(f). The Shareholders’ Representative shall be reimbursed for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel) pursuant to this Agreement and the agreements ancillary hereto from the Shareholders’ Representative Fund; provided that if the Shareholders’ Representative Fund is insufficient to pay such expenses, then the Shareholders’ Representative shall be paid or reimbursed directly from the Option AgreementCompany Holders and the applicable recipients of the Change of Control Payments on a several basis (and not a joint and several basis) according to their respective Pro Rata Percentages.
(h) Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Fund is no longer necessary in connection with defending claims for indemnification of the Shareholders’ Representative and other post-Closing matters pursuant to this Section 2.9, the Shareholders’ Representative shall only have deposit the power or authority to act remaining balance with respect to matters pertaining the Paying Agent for further distribution to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Company Holders and the powers conferred on applicable recipients of the Change of Control Payments according to their respective Pro Rata Percentages. The Paying Agent shall make payments to the Company Holders, the applicable recipients of the Change of Control Payments and the Surviving Corporation pursuant to the Allocation Schedule. Any portion of the Shareholders’ Representative herein Fund that remains undeliverable or unclaimed after six (6) months of the initial delivery attempt (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity by Law) shall become, to the extent permitted by Law, including any abandoned property, escheat or similar Law, the property of Buyer, free and in the Option Agreement clear of any claims or interest of any Person previously entitled thereto. The Shareholders’ Representative Fund shall not authorize be available to Buyer to satisfy any claims in connection with this Agreement or empower the transactions contemplated hereby. Any payments as may be required by the Shareholders’ Representative to do be made directly to it by any Company Holder or cause to be done any action (including by amending, modifying or waiving any provision recipient of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party a Change of Control Payment pursuant to this Agreement or any other agreement shall be paid in accordance with such party’s Pro Rata Percentage.
(i) The Shareholders’ Representative represents and warrants to the Option AgreementCompany, or Buyer and Merger Sub that (iiii) adds it has all requisite limited liability company power and authority to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under execute and deliver this Agreement (including, for the avoidance of doubt, any change and to the nature of the indemnity obligations), in each case with respect to clauses (i)perform its obligations hereunder, (ii) the execution and delivery by the Shareholders’ Representative of this Agreement has been duly authorized by all necessary limited liability company or similar action and no other proceedings are necessary to authorize the execution and delivery of this Agreement, and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Agreement has been duly executed and
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting By virtue of the adoption of this Agreement and the transactions contemplated hereby, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby irrevocably appoint and constitute K Laser designates, Meeshanthini (Meesha) Dogan as the Shareholders’ Representative for and on behalf of the Selling Parties, all purposes in connection with the authority negotiation and execution of this Agreement, the Additional Agreements and the agreements ancillary hereto, including, but not limited to, (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communicationscommunications to Parent for any purpose under this Agreement and the Additional Agreements, (iiiii) to agree to, negotiate, enter into settlements and provide amendments compromises of and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 10.1 or, following the Closing, other disputes arising under or related to this Agreement, (iii) to enter into and waivers in respect deliver the Escrow Agreement on behalf of this Agreement and each of the Option AgreementCompany Securityholders, (iv) to retain legal counselauthorize or object to delivery to Parent of the Escrow Fund, accountantsor any portion thereof, consultants in satisfaction of indemnification claims by the Parent in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and other experts, and incur any other reasonable expenses, document or instrument executed in connection with, with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the .
(b) The Shareholders’ RepresentativeRepresentative may resign at any time. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Company Securityholders from time to time upon not no less than ten twenty (1020) days’ days prior written notice to all the Parent, provided, however, that the Shareholders’ Representative may not be removed unless holders of a majority of the Selling Parties and shares of Company Capital Stock (on an as converted to Parent and PurchaserCompany Shares) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of a majority of the shares of Company Capital Stock (on an as converted to Company Shares) outstanding immediately prior to the Effective Time. No bond shall be required of the Shareholders’ Representative. Notices .
(c) The Shareholders’ Representative will incur no liability of any kind with respect to any action or communications to or from omission by the Shareholders’ Representative in connection with the Shareholders’ Representative’s services pursuant to Parent shall constitute notice to or from each of the Selling Partiesthis Agreement and any agreements ancillary hereto, except for notices related to any action for which in the Selling Parties’ consent is required under the terms event of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability directly resulting from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for any act done action or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted omission pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencecounsel. The Selling Parties shall severally (Company Securityholders will indemnify, defend and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative from and hold it harmless against any lossand all losses, liability or liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense incurred without gross negligence or bad faith on the part of the Shareholders’ document location, duplication and shipment) (collectively, “Representative and Losses”) arising out of or in connection with the acceptance or administration of his duties hereunder. No provision Shareholders’ Representative’s execution and performance of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that Representative Losses shall not include costs (other than third party expenses) incurred by the Shareholders’ Representative based on in the ordinary course of business of the Shareholders’ Representative under any engagement letter entered into by the Shareholders’ Representative, the Company, and certain of the Company Securityholders; provided, further, that in the event that any such reliance shall be deemed conclusively Representative Loss is finally adjudicated to have been taken in good faith.
(c) Notwithstanding directly caused by the foregoing provisions in this ARTICLE VIII, gross negligence or any provision to willful misconduct of the contrary set forth in this Agreement or the Option AgreementShareholders’ Representative, the Shareholders’ Representative shall only have will reimburse the power or authority to act with respect to matters pertaining Company Securityholders the amount of such indemnified Representative Loss to the Selling Parties as a group and not matters pertaining extent attributable to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her such gross negligence or its individual breach of a covenant in this Agreement), and the powers conferred on willful misconduct. In no event will the Shareholders’ Representative herein and be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the Option contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement shall are not authorize or empower intended to be applicable to the indemnities provided to the Shareholders’ Representative to do under this section. The foregoing indemnities will survive the Closing, the resignation or cause to be done any action (including by amending, modifying removal of the Shareholders’ Representative or waiving any provision the termination of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and appoint Haro▇▇ ▇▇▇▇▇ ▇▇ the transactions contemplated herebyShareholders' Representative, hereby irrevocably appoint and constitute K Laser to serve as the Shareholders’ Representative ' agent and attorney-in-fact for and on behalf the limited purposes set forth in Section 5.3(b) of this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this the Disbursement Agent Agreement, Rights Agreement and Security Agreement on behalf of the Option AgreementShareholders, (iv) to execute and deliver any certificates representing the Shares and execution of such further instruments of assignment as Buyer shall reasonably request, (v) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, (vi) to retain legal counsel, accountants, consultants counsel and other expertsprofessional services, and incur any other reasonable expensesat the expense of the Shareholders, in connection withwith the performance by the Shareholders' Representative of this Agreement, (vii) to execute financing statements, termination statements and other documents on behalf of the Shareholders under the Security Agreement and (viii) to take do each and every act and exercise any and all actions necessary rights which such Shareholder or appropriate Shareholders are permitted or required to do or exercise under this Agreement and the other agreements, documents and certificates executed in connection herewith. Each of the judgment Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders’ ' Representative for and shall survive the accomplishment ofdeath, bankruptcy or other incapacity of any or all Shareholder; provided that such agency and proxy shall terminate if this Agreement is terminated pursuant to its terms.
(c) Each of the foregoing. K Laser Shareholders hereby accepts its appointment as agrees that any amendment or waiver under this Agreement, the Disbursement Agent Agreement, the Rights Agreement, the Security Agreement or the Securities, and any action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement and the Notes or the Warrants, and any action taken with respect to any indemnification claim pursuant to Section 8.4 (including any action taken to object to, defend, compromise or agree to the payment of such claim), shall be effective if approved in writing by the Shareholders’ Representative. Such agency may be changed by ' Representative and the holders of a majority in interest of the shares Shares (including any Shares held by the Shareholders' Representative), or, in the case of Everest any amendment or waiver made or given or action taken after the Closing, if so approved by persons who were the holders of a majority of the Selling Parties Shares immediately prior to the Closing, and that each and every action so taken shall be binding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or approved, such amendment or waiver.
(d) Upon signing of this Agreement, each Shareholder shall deliver to the Shareholders' Representative a certificate or certificates representing the Shares being sold by such Shareholder under this Agreement, duly endorsed (or accompanied by duly executed stock powers), for delivery by the Shareholders' Representative to Buyer at the Closing. Upon termination of this Agreement for any reason, such certificates shall be returned by the Shareholders' Representative to the Shareholders.
(e) Haro▇▇ ▇▇▇▇▇ ▇▇▇ll serve as the Shareholders' Representative until he resigns or is otherwise unable or unwilling to serve. In the event that a Shareholders' Representative resigns from time such position or is otherwise unable or unwilling to time upon not less than ten (10) days’ prior serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Shares, a successor representative to fill such vacancy, shall provide prompt written notice to all Buyer of the Selling Parties such change and such substituted representative shall then be deemed to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms all purposes of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formAgreement.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholders, by adopting entering into this Agreement and the transactions contemplated herebyTransactions, hereby irrevocably appoint ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Shareholders' Representative") as their agent and constitute K Laser as attorney-in-fact for purposes of this Agreement, and consent to the taking by the Shareholders’ ' Representative for of any and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement all actions and the Option Agreement, (ii) making of any decisions required or permitted to give and receive notices and communications, (iii) be taken by the Seller or Shareholders pursuant to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertsEBITDA Adjustment Guidelines attached hereto as Exhibit 26, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Company Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser , and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ hereby accepts its his appointment as the Shareholders’ Representative' Representative for purposes of this Section 10.19. Such agency may Purchaser shall be changed entitled to deal exclusively with the Shareholders' Representative on all matters relating to this Section 10.19, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Shareholder by the holders Shareholders' Representative, and on any other action taken or purported to be taken on behalf of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of any Shareholder by the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ ' Representative, including in electronic formas fully binding upon such Shareholder.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it the Shareholders' Representative harmless against any loss, liability or expense incurred without gross negligence or negligence, bad faith or willful misconduct on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require , including the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance reasonable fees and expenses of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by legal counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith' Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: LLC Membership Interest Purchase Agreement (Sizzler International Inc)
Shareholders’ Representative. Each of the Shareholders hereby irrevocably makes, constitutes and appoints Timothy C Palmer as his agent and representative and attorney-in-fact (▇▇▇ "▇▇▇▇▇▇▇▇▇ers' Representative") for all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of such Shareholder, to: (a) receive all notices or documents given or to be given to him by Phoenix pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or other proceeding arising under this Agreement. The Selling PartiesShareholders' Representative promptly shall forward a copy of such notice or process to each Shareholder ; (b) deliver at the Closing the certificates for the Shares of each Shareholder in exchange for his portion of the Exchange Consideration; (c) sign and deliver to Phoenix at the Closing a receipt for his portion of the Exchange Consideration and transmit the Exchange Consideration to each Shareholder; (d) deliver to Phoenix at the Closing all certificates and documents to be delivered to Phoenix by the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by adopting each Shareholder and deposited with the Shareholders' Representative for such purpose; (e) engage such legal counsel, and such accountants and other advisors for Shareholders and incur such other expenses on behalf of Shareholders in connection with this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ ' Representative for may deem appropriate; and (f) take such action on behalf of such Shareholders as the Selling Parties, with the authority Shareholders' Representative may deem appropriate in respect of: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur waiving any other reasonable expenses, in connection with, and to take all actions necessary or appropriate inaccuracies in the judgment representations or warranties of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth Phoenix contained in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted document delivered by it pursuant to this Agreement and the Option Agreement, hereto; (ii) alters waiving the consideration payable fulfillment of any of the conditions precedent to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' obligations hereunder; (iii) adds taking such other action as he is authorized to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities take under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Agreement;
Appears in 1 contract
Sources: Share Exchange Agreement (Phoenix International Industries Inc /Fl/)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently the rights and obligations of the Shareholders under this Agreement, by adopting this Agreement the Shareholders hereby designate and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ntly as the Shareholders’ Representative ' Representative, to serve as the Shareholders' agent and attorney-in-fact for and on behalf the limited purposes set forth in Section 4.1(b) of this Agreement.
(b) Each of the Selling PartiesShareholders hereby appoints the Shareholders' Representative as such Shareholder's agent, proxy and attorney-in-fact, with full power of substitution, for all purposes set forth in this Agreement, including, without limitation, the full power and authority on such Shareholder's behalf (i) to perform consummate the obligations of the Shareholders’ Representative set forth in transactions contemplated by this Agreement and the Option Agreement, (ii) to give and receive notices and communicationsdisburse any funds received hereunder to the Shareholders, (iii) to agree to, negotiate, enter into execute and provide amendments deliver any certificates representing the Shares and supplements to and waivers in respect execution of this Agreement and the Option Agreementsuch further instruments of assignment as Buyer shall reasonably request, (iv) to execute and deliver on behalf of each Shareholder any amendment or waiver under this Agreement, (v) to retain legal counsel, accountants, consultants counsel and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or professional services in connection with the acceptance or administration of his duties hereunder. No provision performance by the Shareholders' Representative of this Agreement shall require the Shareholders’ Representative Agreement, and (vi) to expend do each and every act and exercise any and all rights which such Shareholder or risk its own funds Shareholders are permitted or otherwise incur any financial liability in the required to do or exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf and the other agreements, documents and certificates executed in connection herewith. Each of the Shareholders agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Shareholders' Representative and shall survive the death, bankruptcy or other incapacity of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements Shareholder; provided that such agency and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance proxy shall be deemed conclusively terminate if this Agreement is terminated pursuant to have been taken in good faithits terms.
(c) Notwithstanding Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ntly shall serve as the foregoing provisions in this ARTICLE VIII, Shareholders' Representative until one of them resigns or any provision is otherwise unable or unwilling to serve. In the contrary set forth in this Agreement event that Alan ▇▇▇▇▇ ▇▇ John ▇▇▇ ▇▇▇igns or the Option Agreementis otherwise unable or willing to serve, the other shall serve alone as the Shareholders’ Representative ' Representative. In the event that both Alan ▇▇▇▇▇ ▇▇▇ John ▇▇▇ ▇▇▇ign or are otherwise unable to unwilling to serve, the remaining Shareholders shall only have select, by the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach vote of a covenant in majority of the holders of the Shares, a successor representative to fill such vacancy, shall provide prompt written notice to Parent and Buyer of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Minority Shareholder Purchase Agreement (Quiksilver Inc)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (A) the implementation of the Agreement by the Sellers and Shareholders, by adopting this Agreement and (B) the waiver of any condition to the obligations of the Sellers or the Shareholders to consummate the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as (C) the Shareholders’ Representative for and on behalf settlement of any dispute with respect to the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, the Sellers and Shareholders hereby designate ▇▇▇▇▇ ▇. ▇▇▇▇▇ as their representative (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the "Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ ' Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form").
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Sellers and Shareholders hereby authorize the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant (A) to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or take all action necessary in connection with the acceptance or administration implementation of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of the Sellers and Shareholders, the waiver of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon condition to the informationobligations of the Shareholders to consummate the transactions contemplated hereby, reportsor the settlement of any dispute, statements (B) to give and opinions prepared or presented by counsel or other professionals retained by it, receive all notices required to be given under the Agreement and (C) to take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithSellers and/or Shareholders by the terms of this Agreement.
(c) Notwithstanding In the foregoing provisions event that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy and shall be deemed to be the Shareholders' Representative for all purposes of this Agreement; however, no change in the Shareholders' Representative shall be effective until Global is given notice of it by the Sellers and Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Sellers and Shareholders, and no Seller or Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group Sellers and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that Shareholders agree that:
(i) results in Global shall be able to rely conclusively on the amounts payable hereunder instructions and decisions of the Shareholders' Representative as to any Selling Party being distributed in any manner other than as actions required or permitted pursuant to this Agreement and be taken by the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement Sellers or Shareholders or the Option AgreementShareholders' Representative hereunder, and no party hereunder shall have any cause of action against Global for action taken by Global in reliance upon the instructions or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature decisions of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Shareholders' Representative;
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Sellers hereby irrevocably appoint Shareholders' Representative as their lawful attorney-in-fact to act in the name, place and constitute K Laser as stead of Sellers to execute and deliver the Shareholders’ Representative stock powers for and on behalf of the Selling PartiesShares, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementcertificates referred to in Section 7.1(f), (ii) to give and receive notices and communicationsany amendments, (iii) to agree tosupplements, negotiatemodifications, enter into and provide amendments and supplements to and waivers in respect or terminations of this Agreement and to receive delivery of, and all payments under, the Option AgreementNote and, as their agent with respect to, and with the full power to resolve, all questions, disputes, conflicts and controversies concerning (a) amounts payable under the Note, (ivb) matters concerning the adjustment to retain legal counsel, accountants, consultants the Initial Purchase Price under Sections 2.5 and other experts2.6, and incur any other reasonable expenses, in connection with, (c) all matters concerning Buyer Claims under Article VIII. Shareholders' Representative is authorized to give all notices and to take all actions necessary deemed appropriate by and with respect to such matters, to agree to setoffs against the Note and will have no liability or appropriate obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, Shareholders' Representative shall have no authority as the lawful attorney-in-fact to act in the judgment name, place and stead of the Optionholder with respect to any amendment, supplement, modification, waiver or termination of this Agreement. This appointment is coupled with an interest and is irrevocable by each Seller, and shall terminate only upon the later to occur of (i) termination of Sellers' obligations pursuant to Article III or (ii) payments of all amounts due under the Note and distribution thereof to the Sellers. Notwithstanding the foregoing, in the event Shareholders’ ' Representative resigns, is incapacitated, makes a general assignment for the accomplishment ofbenefit of its creditors, any or all is the subject of the foregoing. K Laser hereby accepts its appointment as the bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall use reasonable efforts to appoint a new Shareholders’ Representative. Such agency may be changed ' Representative by the holders vote of a majority in interest of the shares Sellers, with each Seller to have that number of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formvotes determined by multiplying 100,000 by such Seller's Pro Rata Share.
(bm) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part Section 7.1(h) of the Shareholders’ Representative Amended and arising out of or Restated Agreement is amended to provide in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties full as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.follows:
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesShareholders irrevocably make, by adopting this Agreement constitute and appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as their agent (the transactions contemplated hereby, hereby irrevocably appoint "Shareholders' Representative") and constitute K Laser as authorize and empower him to fulfill the role of Shareholders’ ' Representative for hereunder and on behalf under the Escrow Agreement. In the event of the Selling Parties, with the authority (i) to perform the obligations resignation of the Shareholders’ ' Representative, the resigning Shareholders' Representative set forth shall appoint a successor from among the Shareholders and who shall agree in this Agreement and writing to accept such appointment. If the Option AgreementShareholders' Representative should die or become incapacitated, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect his successor shall be appointed within 15 days of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary his death or appropriate in the judgment incapacity by a majority of the Shareholders’ , and such successor shall be a Shareholder. The choice of a successor Shareholders' Representative for the accomplishment of, appointed in any or manner permitted above shall be final and binding upon all of the foregoingShareholders. K Laser hereby accepts its appointment as the The decisions and actions of any successor Shareholders’ Representative. Such agency may be changed by the holders ' Representative shall be, for all purposes, those of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formas if originally named herein.
(b) Each Shareholder has made, constituted and appointed and by the approval of this Agreement hereby irrevocably makes, constitutes and appoints the Shareholders Representative as such person's true and lawful attorney in fact and agent, for such person and in such person's name, place and stead for all purposes necessary or desirable in order for the Shareholders' Representative to take the actions contemplated by this Agreement and the Escrow Agreement on behalf of the Shareholders, with the ability to execute and deliver all instruments, certificates and other documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such Shareholder could do personally, and each such Shareholder hereby ratifies and confirms as his, her or its own act, all that the Shareholders' Representative shall do or cause to be done pursuant to the provisions hereof.
(c) The death or incapacity of any Shareholder shall not terminate the authority and agency of the Shareholders’ ' Representative.
(d) Buyer shall be entitled to rely exclusively upon any communication given or other action taken by the Shareholders' Representative pursuant hereto and shall not be liable for any act done action taken or omitted hereunder as not taken in reliance upon the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant ' Representative. Buyer shall not be obligated to inquire as to the advice authority of counsel shall be conclusive evidence the Shareholders' Representative to take any action that the Shareholders' Representative takes or purports to take on behalf of such good faith and absence of negligence. the Shareholders.
(e) The Selling Parties shall severally (and not jointly), according Shareholders agree to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and to hold it him or her harmless against any and all loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with his or her duties as Shareholders' Representative, including the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reasonable costs and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ ' Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
defending against any claim or liability in connection herewith (c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement"Representative's Expenses"), and authorize the powers conferred on Shareholder's Representative to receive following the first anniversary of the Effective Date a portion of the amount by which the then remaining balance of the Escrowed Funds exceeds the sum of the Tentatively Impounded Funds (as defined in the Escrow Agreement) equal to the Representative's Expenses in accordance with Section 6(f) of the Escrow Agreement, subject to Section 11.16(f) below; provided, however, that Buyer shall pay all reasonable Representative's Expenses incurred by the Shareholders Representative and its counsel in defending against any Escrow Claim in the event that the Shareholders’ ' Representative herein prevails in such defense, and in the Option Agreement shall not Shareholders and Buyer authorize or empower a maximum amount equal to the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision lesser of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option AgreementFive Thousand Dollars ($5,000.00), or (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature actual amount of the indemnity obligations), reasonable Representative's Expenses incurred by the Shareholders' Representative and its counsel in each case with respect to clauses (i), (ii) and (iii) carrying out the provisions of this Section 8.1(c11.16 and Section 6 of the Option Cancellation Agreements (as evidenced by a written notice from the Shareholders' Representative to Buyer setting forth the actual amount and a description of such Representative's Expenses), without to be remitted prior to the first obtaining the prior written approval anniversary of the Selling PartiesEffective Date to the Shareholders' Representative out of the Escrowed Funds upon the Escrow Agent's receipt of written notice from Buyer stating the amount to be so remitted
(f) Each Shareholder shall have the right to receive upon written request therefor an accounting of the Representative's Expenses for which the Shareholder's Representative is reimbursed from the Escrowed Funds pursuant to Section 11.16(e) hereof.
Appears in 1 contract
Sources: Merger Agreement (Lamcor Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting Approval of this Agreement and by the transactions contemplated hereby, hereby irrevocably appoint and Company shareholders shall constitute K Laser as the Shareholders’ Representative for and on behalf ratification of the Selling Parties, with the authority (i) to perform the obligations irrevocable appointment of the Shareholders’ ' Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree as their agent with respect to, negotiateand with the full power to resolve, enter into all questions, disputes, conflicts and provide amendments controversies concerning Indemnification Claims, to authorize the payments of amounts held under the Escrow Agreement for expenses and supplements Indemnification Claims, to defend, negotiate and/or settle such claims, to employ such agents, consultants and professionals, to delegate authority to his agents, and to take such actions, to grant such consents and waivers and to execute such documents on their behalf in respect connection with Article IX of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expensesEscrow Agreement as the Shareholders' Representative, in connection withhis discretion, deems best. For purposes of this Article IX, ---------- the CFW Indemnified Parties may rely upon written directions and notices received from the Shareholders' Representative with respect to the matters described herein. In the event the Shareholders' Representative ceases to be able to perform his duties as such as a result of his death, incapacity or resignation, The ▇▇▇▇▇▇ Family, L.L.C., shall designate an individual to serve as his successor and to take assume all actions necessary of his duties and obligations hereunder and shall so notify CFW in writing of any such designation. The parties acknowledge and agree that ▇▇▇▇ ▇. ▇▇▇▇▇, or appropriate in the judgment of the any successor designated pursuant to this Section 9.5, is acting as Shareholders’ ' Representative for the accomplishment ofshareholders of ----------- the Company for the limited administrative purposes set forth herein and nothing in this Agreement or the Escrow Agreement is intended to, nor shall, impose any personal liability on ▇▇▇▇ ▇. ▇▇▇▇▇, or all any other Person who serves as Shareholders' Representative. At any time, shareholders who held immediately prior to Closing a majority of the foregoing. K Laser hereby accepts its appointment Company Shares may remove or replace the person serving as the Shareholders’ Representative. Such agency may be changed ' Representative and name a substitute for such person by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior joint written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formCFW.
(b) The Shareholders’ Representative CFW shall not be liable for any act done or omitted hereunder as pay to and reimburse the Shareholders’ Representative while acting in good faith ' Representative's reasonable costs and without negligence expenses, and any act done or omitted pursuant to the advice reasonably incurred costs, expenses and fees of counsel shall be conclusive evidence of such good faith his agents, consultants and absence of negligence. The Selling Parties shall severally (and not jointly)professionals, according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration performance of his duties hereunderas Shareholders' Representative. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented Amounts paid by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance CFW shall be deemed conclusively subject to have been taken in good faithreimbursement as an Escrow Loss.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, CFW shall provide the Shareholders’ ' Representative shall only have with access to or copies of any information contained in the power or authority records of CFW, its subsidiaries and its independent accountants and other agents that is relevant to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Indemnification Claims, and the powers conferred on shall otherwise provide the Shareholders’ ' Representative herein with such information and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (assistance as he may reasonably request, including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesmaking employees available on a mutually convenient basis.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesEffective immediately prior to the Effective Time, and without any further action by adopting this Agreement and the transactions contemplated herebyCompany or any of the Company Shareholders, the Company hereby irrevocably appoint and constitute K Laser appoints ▇▇▇▇ ▇. ▇▇▇▇▇, as the Shareholders’ Representative (the “Shareholders’ Representative”) for each of the Company Shareholders, as each of such shareholder’s agent, to act in each of such shareholder’s name, place and stead, as such shareholder’s attorney-in-fact, to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents and agreements contemplated by this Agreement with respect to such shareholders (including any amendments or waivers of this Agreement and such other documents and agreements), to make all elections or decisions contemplated by this Agreement and any other agreements contemplated by this Agreement including, the initiation or defense of claims for indemnification or other litigation or proceedings, to give and receive on behalf of such shareholders any and all notices from or to any such shareholder or shareholders hereunder and to engage such third parties (including the execution of agreements on behalf of such shareholders in connection therewith) as the Shareholders’ Representative determines to be appropriate and in the best interests of such shareholders, and does hereby give and grant unto the Shareholders’ Representative the power and authority to do and perform each such act and thing whatsoever, that such Company Shareholders may or are required to do pursuant to this Agreement and all other documents and agreements executed and delivered by such shareholders in connection with this Agreement, and to amend, modify or supplement any of the foregoing in each such shareholders’ name, place and stead, as if such shareholder had personally done such act, and ▇▇▇▇ ▇. ▇▇▇▇▇, as Shareholders’ Representative, hereby accepts such appointment. Any proceeds received by the Shareholders’ Representative on behalf of the Selling Parties, with Company Shareholders from Parent the authority (i) Surviving Entity or the Post-Closing Escrow Account on behalf of the Company Shareholders shall be turned over to perform the obligations of such shareholders as promptly as practicable by the Shareholders’ Representative set forth Representative, in this Agreement accordance with the terms and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect provisions of this Agreement and the Option Post-Closing Escrow Agreement. The death, (iv) to retain legal counselincapacity, accountantsdissolution, consultants liquidation, insolvency or bankruptcy of any Company Shareholder shall not terminate such appointment or the authority and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices The power-of-attorney granted in this Section 10.1 is coupled with an interest and is irrevocable. Parent and the Surviving Entity may conclusively rely upon, without independent verification or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Partiesinvestigation, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken all decisions made by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature behalf of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Shareholders.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably Shareholders appoint and constitute K Laser ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇ (or any person appointed as the a successor Shareholders’ Representative for pursuant to Section 2.10(b)) as their representative and on behalf agent under this Agreement.
(b) Shareholders who, immediately prior to the Closing, are entitled to receive 50% or more of the Selling PartiesMerger Consideration, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreementmay, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all Shareholders’ Representative and Buyer, remove Shareholders’ Representative or appoint a new Shareholders’ Representative upon the death, incapacity, resignation or removal of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices If, after the death, incapacity, resignation or communications removal of Shareholders’ Representative, a successor Shareholders’ Representative has not been appointed by Shareholders within fifteen (15) business days after a request by Buyer, Buyer will have the right to or from the appoint a Shareholders’ Representative to Parent shall constitute fill any vacancy so created by written notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according appointment to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding Shareholders authorize Shareholders’ Representative to take any action and to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the foregoing provisions documents referred to in this ARTICLE VIIIAgreement, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Shareholders’ Representative determines in Shareholders’ Representative’s sole and absolute discretion to be necessary, appropriate or advisable. The authority of Shareholders’ Representative includes the right to hire or retain, at the sole expense of Shareholders, such counsel, investment bankers, accountants, representatives and other professional advisors as Shareholders’ Representative determines in Shareholders’ Representative sole and absolute discretion to be necessary, appropriate or advisable in order to perform this Agreement. Any party will have the right to rely upon any action taken by Shareholders’ Representative, and to act in accordance with such action without independent investigation.
(d) Buyer will have no liability to any Shareholder or otherwise arising out of the acts or omissions of Shareholders’ Representative or any provision disputes among Shareholders or with Shareholders’ Representative. Buyer may rely entirely on its dealings with, and notices to the contrary set forth and from, Shareholders’ Representative to satisfy any obligations it might have under this Agreement or any other agreement referred to in this Agreement or the Option Agreement, the otherwise to Shareholders.
(e) Shareholders’ Representative shall only have accepts the power or authority appointment made by this Section 2.10 and agrees to act with respect to matters pertaining to abide by the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) provisions of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties2.10.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Patina Oil & Gas Corp)
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (i) the implementation of the Agreement by the Shareholders, by adopting this Agreement and (ii) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (iii) the settlement of any dispute with respect to this Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser designate ▇▇▇▇▇ ▇. ▇▇▇▇▇ as their representative (the "Shareholders' Representative").
(b) In the event that the Shareholders’ ' Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy and shall be deemed to be the Shareholders' Representative for and all purposes of this Agreement. Any change in the Shareholders' Representative shall be effective when Buyer is receives notice of such change.
(c) The Shareholders hereby authorize the Shareholders' Representative (i) to take all action necessary in connection with the implementation of this Agreement on behalf of the Selling PartiesShareholders, with the authority (i) to perform waive any condition to the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or to settle any dispute, (ii) to give receive, on behalf of the Shareholders, any payments payable to the Shareholders under this Agreement from Buyer, including, without limitation, the Purchase Price, and receive notices and communicationsto disburse such payments to the Shareholders, (iii) to agree to, negotiate, enter into give and provide amendments and supplements receive all notices required or permitted to and waivers in respect of this be given or received by the Shareholders under the Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and all additional action as is contemplated to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ RepresentativeAgreement, including in electronic formwithout limitation, the execution and delivery of documents to transfer the Company Shares to Buyer.
(bd) The All decisions and actions by the Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part binding upon all of the Shareholders’ Representative , and arising out of no Shareholder shall have the right to object, dissent, protest or otherwise contest the same, except as provided in connection with the acceptance or administration of his duties hereunder. No provision Section 1.6(e)(ii).
(e) By their execution of this Agreement Agreement, the Shareholders agree that:
(i) Buyer and Indemnity Escrow Agent shall require be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative (with Buyer hereby acknowledging that the Shareholders' Representative may, with respect to expend any action, instruction or risk its own funds decision, seek guidance and/or approvals of the Shareholders before acting), as to any actions required or otherwise incur any financial liability in permitted to be taken by the exercise Shareholders or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no Party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.' Representative;
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters all actions, decisions and instructions of the consideration payable to Shareholders' Representative shall be conclusive and binding upon all of the Shareholders (except in the case of the Shareholders' Representative's fraud, bad faith or willful breach of this Agreement) and no Shareholder shall have any Selling Party pursuant to this Agreement cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities Shareholders' Representative under this Agreement (including, for except pursuant to any separate agreement among the avoidance of doubt, any change to the nature of the indemnity obligationsShareholders), in each case with respect to clauses (i), (ii) and ;
(iii) remedies available at law for any breach of the provisions of this Section 8.1(c)1.6 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.6; and
(iv) the provisions of this Section 1.6 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders to the Shareholders' Representative and shall be binding upon the executors, heirs, legal representatives and successors of each Shareholder.
(f) All fees and expenses incurred by the Shareholders' Representative shall be for the account of the Shareholders, including, without first obtaining limitation, any payments made by the prior written approval of Shareholders' Representative under the Selling PartiesIndemnity Escrow Agreement.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to efficiently administer the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority including (i) the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) the waiver of any condition to perform the obligations of the Company and the Company Shareholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Shareholders’ , by the approval and adoption of this Agreement, shall designate RH Investments 2001 LLC as their representative (the "Shareholders' Representative"). The parties acknowledge that the Company and the Shareholders' Representative shall, prior to the Closing, direct by joint written notice(s) to the Buyer and the Exchange Agent that, on the Closing Date (i) a portion of the Preliminary Merger Consideration, not to exceed an amount to be disclosed in the Information Statement (as defined in Section 4.3) (the "Shareholders' Representative Fund"), shall be withheld and paid directly by the Buyer to an account designated in such notice, as a fund for the fees and expenses of the Shareholders' Representative incurred in connection with this Agreement, with any balance of the Shareholders' Representative Fund not incurred for such purposes to be returned to the Company Shareholders in proportion to their interests in the Escrow Fund, and in such manner that the Shareholders' Representative and the Company may prior to the Closing agree in writing, and (ii) a portion of the Preliminary Merger Consideration, in excess of the $300,000 of such expenses to be borne by the Buyer under Section 4.8, but not to exceed an amount to be disclosed in the Information Statement, shall be paid directly by the Buyer to certain financial and professional advisors and legal counsel to the Company in amounts to be set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior such joint written notice to all of (such amounts, after deducting such $300,000 sum, the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form"Expenses").
(b) The Company Shareholders by the approval and adoption of this Agreement authorize the Shareholders’ ' Representative (i) to make all decisions relating to the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Shareholders by the terms of this Agreement.
(c) In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Shareholders holding, prior to the Closing, a majority of the Company Shares (on an as-converted basis) immediately prior to the Effective Time are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer relating to the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or the defense or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Shareholders' Representative shall not be liable have any liability to any of the Parties or the Company Shareholders for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Company Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision .
(f) By his, her or its approval of the Merger, this Agreement and the Escrow Agreement, each Company Shareholder agrees, in addition to the foregoing, that:
(i) the Buyer shall require be entitled to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powersclaims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The other actions required or permitted to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Shareholders’ ' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative based on such reliance shall be deemed conclusively to conclusive and binding upon all of the Company Shareholders and no Company Shareholder shall have been taken any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for Fraud (as defined in good faith.Section 6.4) or willful misconduct by the Shareholders' Representative in connection with the matters described in this Section 1.10;
(ciii) Notwithstanding the foregoing provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the transactions contemplated by this ARTICLE VIIIAgreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, or the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Shareholder, and any provision to the contrary set forth references in this Agreement to a Company Shareholder or the Option AgreementCompany Shareholders shall mean and include the successors to the Company Shareholder's rights hereunder, whether pursuant to testamentary disposition, the Shareholders’ Representative shall only have the power laws of descent and distribution or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Shareholders’ Representative. By executing this Agreement, each Shareholder irrevocably constitutes and appoints Robert Rouleau as its true and lawful agent and attorney-in-fact (a) The Selling Partiest▇▇ "▇▇▇▇▇▇▇▇▇▇rs' Representative"), by adopting with full powers of substitution, to act in the name, place and stead of each Shareholder with respect to the transactions contemplated hereby in accordance with the provisions of this Agreement and the transactions contemplated herebyEscrow Agreement, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and including, without limitation, to grant waivers on behalf of the Selling Parties, with the authority (i) each Shareholder or to perform the obligations of the Shareholders’ Representative set forth in enter into amendments to this Agreement and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Shareholders' Representative may deem necessary or appropriate in connection with any of the Option transactions contemplated by this Agreement or the Escrow Agreement, (ii) to give and receive notices and communications, (iii) to authorize delivery to Acquisition Sub and CalAmp of the Escrow Amount or other property from the Escrow Account in satisfaction of claims by Acquisition Sub Indemnified Parties, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection with, demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the Shareholder from time to time upon not less than 30 days prior written notice to Acquisition Sub and CalAmp; provided, however, that the Shareholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Amount agree to such removal and to the identity of the substituted shareholders' representative. Any vacancy in the position of Shareholders' Representative may be filled by approval of the holders of a majority in interest of the shares of Everest Escrow Account. The Shareholders agree that any such action, if material to the rights and obligations of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of Shareholders in the Selling Parties and to Parent and Purchaser. No bond shall be required reasonable judgment of the Shareholders’ ' Representative, shall be taken in the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. Notices or communications to or from The appointment of the Shareholders’ ' Representative to Parent shall constitute notice to or from each be deemed coupled with an interest and shall be irrevocable, and Acquisition Sub, CalAmp, the Escrow Agent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Selling Parties, except for notices related Shareholders' Representative as the act of the Shareholders in all matters referred to any action for which the Selling Parties’ consent is required under the terms of in this Agreement or applicable lawAgreement. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithreasonable judgment.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesIn order to administer efficiently (i) the implementation of the Agreement by the Shareholders, by adopting this Agreement and (ii) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (iii) the settlement of any dispute with respect to the Agreement, the Shareholders hereby irrevocably appoint and constitute K Laser as designate Coll▇▇▇ ▇▇▇▇▇, ▇▇ their representative (the "Shareholders' Representative").
(b) The Shareholders hereby authorize the Shareholders’ ' Representative for and (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Selling PartiesShareholders, with the authority (i) waiver of any condition to perform the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and communications, (iii) to agree to, negotiate, enter into take any and provide amendments and supplements all additional action as is contemplated to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary be taken by or appropriate in the judgment on behalf of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed Shareholders by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithAgreement.
(c) Notwithstanding In the foregoing provisions in this ARTICLE VIIIevent (i) that the Shareholders' Representative dies, becomes legally incapacitated or resigns from such position, or (ii) upon a written consent executed by at least 66 2/3% in interest (calculated based on the allocation set for in Schedule 3.2 hereof, notwithstanding any provision subsequent change in shareholdings by way of sale, etc.) of the Shareholders, the Shareholders may designate a replacement to the contrary set forth Shareholders' Representative; however, no change in the Shareholders' Representative shall be effective until SPSS is given notice of it by the Shareholders.
(d) All decisions and actions by the Shareholders' Representative shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same, in the absence of fraud, gross negligence or willful misconduct of the Shareholders' Representative.
(e) By their execution of this Agreement or the Option Agreement, the Shareholders agree that:
(i) SPSS shall be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to any actions required or permitted to be taken by the Shareholders or the Shareholders' Representative hereunder, and no party hereunder shall have any cause of action against SPSS for any action taken by SPSS in reliance upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall only be conclusive and binding upon all of the Shareholders; no Shareholder shall have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way any cause of limitation, an action against an individual Selling Party SPSS or Clear Software for hisany action taken or omitted to be taken, her decision made or its individual breach omitted to be made or any instruction given or omitted to be given by the Shareholders' Representative; and no Shareholder shall have any cause of a covenant in action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize except for fraud, gross negligence or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision willful breach of this Agreement or by the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or Shareholders' Representative;
(iii) adds the Shareholders' Representative shall be deemed to or results in an increase of fulfill any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change fiduciary obligation to the nature Shareholders so long as no Shareholder is adversely affected by any action or failure to act of the indemnity obligations), Shareholders' Representative in each case with respect a disproportionate measure compared to clauses any other Shareholder;
(i), (iiiv) and (iii) remedies available at law for any breach of the provisions of this Section 8.1(c)1.7 are inadequate; therefore, SPSS shall be entitled to temporary and permanent injunctive relief without first obtaining the prior written approval necessity of proving damages if SPSS brings an action to enforce the Selling Partiesprovisions of this Section 1.7; and
(v) the provisions of this Section 1.6 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Shareholders to the Shareholders' Representative and shall be binding upon the executors, heirs, legal representatives and successors of each Shareholder.
(f) All fees and expenses incurred by the Shareholders' Representative shall be paid by the Shareholders.
Appears in 1 contract
Sources: Merger Agreement (SPSS Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to efficiently administer the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority including (i) the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) the waiver of any condition to perform the obligations of the Company and the Company Shareholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Shareholders’ , by the approval and adoption of this Agreement, shall designate RH Investments 2001 LLC as their representative (the "Shareholders' Representative"). The parties acknowledge that the Company and the Shareholders' Representative shall, prior to the Closing, direct by joint written notice(s) to the Buyer and the Exchange Agent that, on the Closing Date (i) a portion of the Preliminary Merger Consideration, not to exceed an amount to be disclosed in the Information Statement (as defined in Section 4.3) (the "Shareholders' Representative Fund"), shall be withheld and paid directly by the Buyer to an account designated in such notice, as a fund for the fees and expenses of the Shareholders' Representative incurred in connection with this Agreement, with any balance of the Shareholders' Representative Fund not incurred for such purposes to be returned to the Company Shareholders in proportion to their interests in the Escrow Fund, and in such manner that the Shareholders' Representative and the Company may prior to the Closing agree in writing, and (ii) a portion of the Preliminary Merger Consideration, in excess of the $300,000 of such expenses to be borne by the Buyer under Section 4.8, but not to exceed an amount to be disclosed in the Information Statement, shall be paid directly by the Buyer to certain financial and professional advisors and legal counsel to the Company in amounts to be set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior such joint written notice to all of (such amounts, after deducting such $300,000 sum, the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form"Expenses").
(b) The Company Shareholders by the approval and adoption of this Agreement authorize the Shareholders’ ' Representative (i) to make all decisions relating to the determination of the Closing Working Capital Adjustment and the Adjusted Merger Consideration, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Shareholders by the terms of this Agreement.
(c) In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Shareholders holding, prior to the Closing, a majority of the Outstanding Company Shares (on an as-converted basis) are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer relating to the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or the defense or settlement of any claims for which the Company Shareholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, shall be binding upon all of the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Shareholders' Representative shall not be liable have any liability to any of the Parties or the Company Shareholders for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Company Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision .
(f) By his, her or its approval of the Merger, this Agreement, the Escrow Agreement and the Special Escrow Agreement, each Company Shareholder agrees, in addition to the foregoing, that:
(i) the Buyer shall require be entitled to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative as to expend the determination of the Closing Working Capital Adjustment and/or the Adjusted Merger Consideration, or risk its own funds or otherwise incur any financial liability in the exercise or performance settlement of any of its powersclaims for indemnification by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The other actions required or permitted to be taken by the Shareholders’ ' Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by ithereunder, and no party hereunder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Shareholders’ ' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative based on such reliance shall be deemed conclusively to conclusive and binding upon all of the Company Shareholders and no Company Shareholder shall have been taken any cause of action against the Shareholders' Representative for any action taken, decision made or instruction given by the Shareholders' Representative under this Agreement, except for Fraud (as defined in good faith.Section 6.4) or willful misconduct by the Shareholders' Representative in connection with the matters described in this Section 1.10;
(ciii) Notwithstanding the foregoing provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Shareholder may have in connection with the transactions contemplated by this ARTICLE VIIIAgreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 are inadequate; therefore, or the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation brings an action to enforce the provisions of this Section 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Shareholder, and any provision to the contrary set forth references in this Agreement to a Company Shareholder or the Option AgreementCompany Shareholders shall mean and include the successors to the Company Shareholder's rights hereunder, whether pursuant to testamentary disposition, the Shareholders’ Representative shall only have the power laws of descent and distribution or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesotherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Rsa Security Inc/De/)
Shareholders’ Representative. (a) The Selling PartiesEach Shareholder, by adopting signing this Agreement, designates ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (or, in the event that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ is unable or unwilling to serve, the Shareholders shall collectively appoint, by a majority vote, a Shareholder reasonably acceptable to the Company) to be the "SHAREHOLDERS' REPRESENTATIVE" for purposes of this Agreement. In the event that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, as Shareholders' Representative, expects to be absent for any period of time (for example, if he is travelling for an extended period), he shall have the right to appoint a temporary Shareholders' Representative to act in his stead during such time period and each Shareholder agrees to such temporary assignment. The term "Shareholders' Representative" includes any such temporary appointee. The Shareholders shall be bound by any and all actions taken by the Shareholders' Representative on their behalf.
(b) Each of ADAC and Sub shall be entitled to rely upon any communication or writings given or executed by the Shareholders' Representative. All communications or writings to be sent to Shareholders pursuant to this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as may be addressed to the Shareholders’ ' Representative for and any communication or writing so addressed and sent shall be deemed notice to -4- all of the Shareholders hereunder. The Shareholders hereby consent and agree that the Shareholders' Representative is authorized to accept deliveries, including any notice, on behalf of the Selling PartiesShareholders pursuant hereto.
(c) The Shareholders' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Shareholder, with full power in his or her name and on his or her behalf to act according to the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect terms of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate Transactional Agreements in the judgment absolute discretion of the Shareholders’ Representative for the accomplishment of, any or ' Representative; and in general to do all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties things and to Parent perform all acts including, without limitation, executing and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or deemed advisable in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreementother Transactional Agreements. This power of attorney and all authority hereby conferred is granted subject to the interest of the other Shareholders hereunder and in consideration of the mutual covenants and agreements made herein, (ii) alters the consideration payable to and shall be irrevocable and shall not be terminated by any Selling Party pursuant to this Agreement act of any Shareholder, by operation of law, whether by such Shareholder's death or the Option Agreementotherwise, or (iii) adds to or results in an increase of by any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiesevent.
Appears in 1 contract
Sources: Merger Agreement (Adac Laboratories)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Majority Shareholder is hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative as agent and attorney-in-fact of the Company Shareholders. The Shareholders’ Representative shall have the authority, for and on behalf of the Selling PartiesCompany Shareholders (except for such Company Shareholders, with if any, who have perfected their dissenters’ rights under the authority (i) WBCA), to perform the obligations take such actions and exercise such discretion as are required of the Shareholders’ Representative set forth in pursuant to Article III, Section 7.12 and Section 7.15, and Article IX of this Agreement and the Option Agreement, the Escrow Agreement, and any related document or instrument, and any such actions shall be binding on each Company Shareholder, including the following:
(iia) to give and receive communications and notices and communications, on behalf of the Company Shareholders;
(iiib) to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to Claims against Company Shareholders;
(c) to negotiate, agree to, enter into settlements and provide amendments compromises of, and supplements comply with orders and awards of courts with respect to and waivers in respect of any Claims or disputes related to this Agreement or the Escrow Agreement;
(d) to receive on behalf of the Company Shareholders payments due and owing pursuant to this Agreement or the Option Escrow Agreement and acknowledge receipt thereof;
(e) to amend, supplement or change this Agreement or the Escrow Agreement, or waive any provision hereof or thereof; provided, however, that the Shareholders’ Representative has obtained the prior written consent of each of the Principal Shareholders;
(ivf) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, receive service of process on behalf of the Company Shareholders in connection withwith any Claims under this Agreement, and the Escrow Agreement or any related document or instrument; and
(g) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, to accomplish any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond All such actions shall be required of the Shareholders’ Representative. Notices or communications deemed to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of be facts ascertainable outside this Agreement or applicable lawand shall be binding on the Company Shareholders as a matter of contract Law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Company Shareholders for any act done or omitted hereunder to be taken as the Shareholders’ Representative while acting in good faith except expressly as set forth herein. By the Company AGREEMENT AND PLAN OF MERGER 58 Shareholders’ approval of this Agreement, each Company Shareholder shall have and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith deemed to have agreed that the Company Shareholders shall indemnify and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify hold harmless the Shareholders’ Representative and hold it harmless against any lossits partners, liability or expense incurred without gross negligence or bad faith on the part shareholders, Affiliates, directors, officers, fiduciaries, employees and agents and each of the Shareholders’ partners, shareholders, Affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each a “Representative Indemnified Party”) from and against all Losses incurred or suffered by the Representative Indemnified Parties as a result of, or arising out of of, or in connection with the acceptance relating to any and all actions taken or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative omitted to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action be taken by the Shareholders’ Representative based pursuant to this Section 9.11, or in connection with the incurrence, payment, discharge or settlement of any of the obligations of the Company Shareholders, except for any such Losses that arise on such reliance account of the Shareholders’ Representative’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final adjudication. None of the Representative Indemnified Parties shall be deemed conclusively liable to have been taken any Company Shareholder in good faith.
(c) Notwithstanding the foregoing provisions respect of such arrangements or actions or omissions in this ARTICLE VIIIconnection therewith, or any provision except to the contrary set forth in this Agreement extent that such acts or the Option Agreementomissions constitute gross negligence or willful misconduct. A decision, act, consent or instruction of the Shareholders’ Representative shall only have constitute a decision for all of the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)Company Shareholders hereunder, and the powers conferred on shall be final, binding and conclusive upon each of such Company Shareholders and Purchaser and Merger Sub may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of such Company Shareholders. Purchaser and Merger Sub are hereby relieved and held harmless from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholders’ Representative. The Shareholders’ Representative shall be entitled to reimbursement from the Company Shareholders of any and all fees, expenses and costs incurred in the performance of such Shareholders’ Representative’s duties hereunder. Notwithstanding anything to the contrary herein, no Company Shareholder shall be obligated to reimburse or indemnify or hold harmless the Shareholders’ Representative in an aggregate amount in excess of such Company Shareholder’s Percentage Interest of the Post-Closing Expenses Fund, the Adjustment Escrow Amount or the Indemnity Escrow Amount, or an individual amount in excess of such Company Shareholder’s Percentage Interest of the amount for which reimbursement or indemnification is sought. The Shareholders’ Representative shall have the right to instruct Purchaser and the Exchange Agent to offset any of the Aggregate Merger Consideration in satisfaction of any of the foregoing obligations of the Company Shareholders to the Shareholders’ Representative. If the Majority Shareholder becomes unable to serve as Shareholders’ Representative, such other Person or Persons may be designated by a majority of the individuals who were the directors of the Company immediately prior to the Closing, and such Person or Persons shall succeed as the Shareholders’ Representative. Each successor Shareholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Shareholders’ Representative, and the term “Shareholders’ Representative” as used herein and in the Option Escrow Agreement shall not authorize be deemed to include any interim or empower the successor Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Avista Corp)
Shareholders’ Representative. (a) The Selling Parties, by adopting Upon the execution of this Agreement and without further action of any Shareholder, John ▇▇▇▇▇▇ ▇▇▇ll be constituted and appointed as agent and attorney-in-fact (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the "Shareholders’ Representative ' Representative") for and on behalf of the Selling Parties, with the authority (i) to perform the obligations each of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Shareholders to give and receive notices and communications, (iii) to authorize delivery to Parent of amounts in the Escrow Fund in satisfaction of Claims, to object to such deliveries, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withdemand arbitration and comply with orders of courts and awards of arbitrators with respect to Claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the holders vote of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to all of the Selling Parties and to Parent and PurchaserParent. No bond shall be required of the Shareholders’ ' Representative. Notices or communications to or from , and the Shareholders’ ' Representative to Parent shall constitute notice to or from each of the Selling Partiesreceive no compensation for its services, except for notices related to any action for which payment by the Selling Parties’ consent is required Shareholders of expenses, including fees of counsel, reasonably incurred by the Shareholders' Representative in connection with the performance of its duties hereunder and under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic formEscrow Agreement.
(b) The Shareholders’ ' Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ ' Representative while acting in good faith and without negligence faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ ' Representative and hold it such agent harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ ' Representative and arising out of or in connection with the acceptance or administration of his the Shareholders' Representative's duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIIIA decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ ' Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as constitute a group decision of all Shareholders and not matters pertaining to an individual Selling Party (for example but not by way of limitationshall be final, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)binding and conclusive upon each Shareholder, and the powers conferred on Escrow Agent and Parent may rely upon any decision, act, consent or instruction of the Shareholders’ ' Representative herein taken in such manner as being the decision, act, consent or instruction of each and every Shareholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in the Option Agreement shall not authorize accordance with such decision, -44- 50 act, consent or empower instruction of the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties' Representative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting Company Shareholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇ to serve as the Shareholders’ Representative as provided herein. By signing this Agreement and in the transactions contemplated herebycapacity of Shareholders’ Representative, the Shareholders’ Representative hereby irrevocably appoint and constitute K Laser accepts the appointment as the Shareholders’ Representative for purposes of this Agreement.
(b) Each Company Shareholder, by the execution of this Agreement, hereby irrevocably appoints the Shareholders’ Representative as the representative, proxy and on behalf attorney-in-fact (with full power of substitution) for such Company Shareholder for the Selling Parties, with limited purposes of carrying out the authority (i) to perform the obligations express duties of the Shareholders’ Representative set forth in under this Agreement. Within the scope of that limited purpose, each Company Shareholder grants the Shareholders’ Representative the full and exclusive power and authority to represent and bind such Company Shareholder with respect to all matters related to, arising under or pursuant to the express duties of the Shareholders’ Representative under this Agreement (including the taking by the Shareholders’ Representative of any and all actions and the Option Agreementmaking of any decisions required or permitted to be taken on such Company Shareholder’s behalf), including without limitation: (i) to terminate this Agreement in accordance with the provisions of Article X; (ii) to give and receive notices and communicationsbring, defend and/or resolve any claim made or threatened pursuant to Article IX; (iii) to agree to, negotiate, enter into settle, adjust or compromise any such claims, bring suit or seek arbitration with respect to any such claims, and provide amendments comply with orders of courts and supplements awards of arbitrators with respect to and waivers in respect of this Agreement and the Option Agreement, any such claims; (iv) to retain legal counselact on behalf of such Company Shareholder in any dispute, accountantsclaim, consultants litigation or arbitration that in the judgment of the Shareholders’ Representative may result in a claim pursuant to Article IX hereof; (v) to agree to the defense of any Third Party Claim by the Company Shareholders pursuant to Article IX hereof; and other experts, and incur any other reasonable expenses, in connection with, and (vi) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment ofof the foregoing. A decision, act, consent or instruction of the Shareholders’ Representative as to any of the foregoing matters shall constitute a decision of all of Company Shareholders and shall be final, binding and conclusive on each Company Shareholder. Parent may rely upon such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of every Company Shareholder. The Shareholders’ Representative, in its sole and absolute discretion, may, by written notice to Parent and the applicable Company Shareholders, decline to exercise the power and authority granted herein to act on behalf of and in the name of any Company Shareholder or all of the foregoingCompany Shareholders with respect to any or all matters specified in such written notice, without incurring any liability to any party to this Agreement in connection with or as a result of such declination. K Laser hereby accepts its appointment as EACH COMPANY SHAREHOLDER AGREES THAT SUCH AGENCY AND PROXY ARE COUPLED WITH AN INTEREST, ARE THEREFORE IRREVOCABLE WITHOUT THE CONSENT OF THE SHAREHOLDERS’ REPRESENTATIVE AND SHALL SURVIVE THE DEATH, INCAPACITY, OR BANKRUPTCY OF ANY COMPANY SHAREHOLDERS.
(c) Neither the Shareholders’ Representative. Such agency may Representative nor any agent employed by it shall incur any liability to any Company Shareholders relating to the performance of its duties hereunder for any error of judgment, or any action taken, suffered or omitted to be changed by the holders of a majority in interest taken on behalf of the shares Company Shareholders (or any of Everest them), except in the case of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required actual gross negligence or fraud of the Shareholders’ Representative. Notices The Shareholders’ Representative may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or communications to or from suffered by the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in accordance with the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall counsel.
(d) Each Company Shareholder hereby irrevocably agrees, severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the bear such Company Shareholders’ Representative and hold it harmless against Pro Rata Portion of any loss, liability or expense expense, including reasonable attorneys’ fees and expenses, incurred without gross negligence or bad faith fraud on the part of the Shareholders’ Representative and arising out of or Representative, in connection with the acceptance performance of its duties, or administration arising out of, or in connection with, any action or decision taken or made on behalf of his duties hereunder. No provision of this Agreement shall require any Company Shareholder by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in within the exercise or performance scope of any of its powers, rights, the Shareholders’ Representative’s duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by itSection 1.10, and any action to be bound by all actions taken by the Shareholders’ Representative based on in its capacity as such reliance within the scope of the Shareholders’ Representative’s duties under this Section 1.10. The Company Shareholders hereby acknowledge and agree that loss, liability or expense, including reasonable attorneys’ fees and expenses, incurred by the Shareholders’ Representative, if any, (i) shall be deemed conclusively reimbursed from the Shareholders’ Representative Expense Amount, and (ii) from and after the time the Shareholders’ Representative Expense Amount has been reduced to have been taken zero, shall be reimbursed by each of the Company Shareholders in good faith.
(c) Notwithstanding accordance with the foregoing provisions in this ARTICLE VIIIrespective Pro Rata Portion attributable to such Company Shareholder’s shares of Company Capital Stock; provided, or any provision to the contrary set forth in this Agreement or the Option Agreementhowever, that the Shareholders’ Representative shall only have be entitled to withhold from any amounts released from the power or authority to act with respect to matters pertaining Escrow Assets to the Selling Parties as a group and Company Shareholders any amounts that are not matters pertaining to an individual Selling Party so reimbursed by Company Shareholders.
(for example but not by way e) Upon the death, disqualification or resignation of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Representative, a successor Shareholders’ Representative to do or cause to shall be done any action (including appointed by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature mutual written agreement of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesCompany Shareholders.
Appears in 1 contract
Sources: Stock Purchase Agreement (FusionStorm Global, Inc.)
Shareholders’ Representative. (a) The Selling Parties, rights of the Escrow Participants to receive disbursements from the Escrow Fund pursuant to the Escrow Agreement shall be subject to the right of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the “Shareholders’ Representative”) to take any and all actions and make any and all decisions required or permitted to be taken or made by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf under this Agreement or the Escrow Agreement, including the exercise of the Selling Parties, with the authority right to: (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, communications under Article 8 or the Escrow Agreement; (ii) authorize delivery to Parent of Parent Common Stock from the Escrow Fund in satisfaction of claims for indemnification made by Parent under Article 8; (iii) object to claims for indemnification made by Parent under Article 8; (iv) agree to, negotiate, enter into settlements and provide amendments compromises of and supplements comply with court orders with respect to and waivers in respect claims for indemnification made by Parent under Article 8; (v) undertake any defense of this Third-Party Claims; (vi) amend or waive the Escrow Agreement and the Option Agreement, (ivvii) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as The identity of the Shareholders’ Representative may be changed, and a successor Shareholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Shareholders’ Representative. Such agency may be changed ) by ▇▇▇▇▇▇ Participants whose aggregate Escrow Participation Percentages exceed sixty percent (60%), and any such successor shall succeed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) daysShareholders’ prior written notice to all of the Selling Parties and to Parent and PurchaserRepresentative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall be reimbursed for costs and expenses (including overhead expenses) incurred in such capacity from the Representative Reimbursement Amount. Notices From and after the Effective Time, a decision, act, consent or communications instruction of the Shareholders’ Representative shall be final, binding and conclusive upon each Escrow Participant.
(b) At the Closing, Parent shall make a cash payment to the Shareholders’ Representative, by wire transfer of immediately available funds to an account designated by the Shareholders’ Representative prior to the Closing Date, in the amount of $500,000 (the “Representative Reimbursement Amount”). The Representative Reimbursement Amount shall be held by the Shareholders’ Representative for reimbursement payable to the Shareholders’ Representative under this Section 9.1 (the “Representative Reimbursement Fund”). Parent and Merger Sub shall have no further obligation or from liability with respect to the Representative Reimbursement Amount other than payment of the same to the Shareholders’ Representative pursuant to this Section 9.1(b). Any portion of the Representative Reimbursement Fund that has not been utilized by the Shareholders’ Representative pursuant to the terms of this Agreement on or prior to the date specified by the Shareholders’ Representative on or after the Expiration Date, shall be paid by the Shareholders’ Representative to Parent shall constitute notice the Escrow Agent for distribution to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including Escrow Participants pro rata in electronic formaccordance with their respective Escrow Participation Percentages.
(bc) The Shareholders’ Representative shall not be liable for any act done liability, loss, damage, penalty, fine, cost or omitted hereunder as expense incurred without gross negligence by the Shareholders’ Representative while acting in good faith and without negligence in the exercise of its good faith judgment and arising out of or in connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith).
(d) The Shareholders’ Representative shall be entitled to deduct and absence of negligence. The Selling Parties shall severally (recover from any amounts payable to the Escrow Participants pursuant to this Agreement or the Escrow Agreement any costs and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify expenses reasonably incurred by the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action actions taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision pursuant to the contrary set forth in terms of this Agreement or the Option AgreementEscrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs), after the Representative Reimbursement Fund has been exhausted.
(e) From and after the Effective Time, Parent and the Surviving Corporation shall promptly afford to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining reasonable access to the Selling Parties as a group books, records (including accountants’ work papers) and not matters pertaining to an individual Selling Party (for example but not by way employees of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Parent and the powers conferred on Surviving Corporation to the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower extent reasonably determined by the Shareholders’ Representative to do be necessary to permit it to investigate or cause determine any matter relating to be done any action (including by amending, modifying i) its rights or waiving any provision obligations or the rights or obligations of the Escrow Participants under this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Escrow Agreement, or (iiiii) adds to the rights or results in an increase of obligations (under any Selling Party’s indemnity law or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature otherwise) of the indemnity obligations), in each case Escrow Participants with respect to clauses (i), (ii) and (iii) any period ending on or before the date of this Section 8.1(c)Agreement. Unless otherwise consented to in writing by the Shareholders’ Representative, neither Parent nor the Surviving Corporation shall, for a period of four years after the date of this Agreement, destroy, alter or otherwise dispose of any of the books and records of the Surviving Corporation relating in whole or in part to any period prior to the date of this Agreement without first obtaining offering to surrender to the prior Shareholders’ Representative such books and records or any portion thereof which Parent or the Surviving Corporation may intend to destroy, alter or otherwise dispose of.
(f) Parent may rely and shall be protected in acting, or refraining from acting, upon any written approval notice, instruction or request furnished to it hereunder or under the Escrow Agreement and reasonably believed by Parent to be genuine and to have been signed or presented by the Shareholders’ Representative as if such written notice, instruction or request had been furnished to it by all the Escrow Participants.
(g) Parent hereby consents to the retention by the Shareholders’ Representative of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as counsel following the Selling PartiesClosing, notwithstanding that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP has represented Company in connection with the transactions contemplated by this Agreement, including the negotiation of this Agreement, and waives any right Parent or the Surviving Corporation may have to object to such representation.
Appears in 1 contract
Sources: Merger Agreement
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and In order to administer efficiently the transactions contemplated hereby, including (i) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, the Shareholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as their representative (the “Shareholders’ Representative”), in accordance with the terms of the Power of Attorney (as defined in Section 7.3(i)).
(b) Each Shareholder irrevocably appoint and constitute K Laser as agrees that such Shareholder grants the Shareholders’ Representative full power and authority to act as agent and attorney-in-fact for each Shareholder, for and on behalf of the Selling PartiesShareholders, with the authority (i) to perform take all action necessary in connection with the waiver of any condition to the obligations of the Shareholders’ Representative set forth in this Agreement and Shareholders to consummate the Option Agreementtransactions contemplated hereby, or the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Fund, (ii) to give and receive all notices and communicationsrequired to be given or received by the Shareholders under this Agreement or the Escrow Agreement, (iii) to authorize delivery to Purchaser of Indemnification Escrow Consideration in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, to negotiate, enter into settlements and provide amendments compromises of, and supplements demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants take any and other experts, and incur any other reasonable expenses, in connection with, and to take all actions additional action necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment foregoing or as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement and the Escrow Agreement.
(c) The agency of the Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten (10) 30 days’ prior written notice to Purchaser. In the event that the Shareholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Founders shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. The Shareholders’ Representative shall not receive compensation for his or her services. No provision of this Agreement shall restrict in any way the ability or right of the Shareholders’ Representative to voluntarily resign from such position at any time, and any such resignation shall be done without any liability to the Shareholders’ Representative.
(d) All decisions and actions by the Shareholders’ Representative, including without limitation any agreement between the Shareholders’ Representative and Purchaser relating to the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Indemnification Escrow Consideration held in the Indemnification Escrow Fund, shall be binding upon all of the Selling Parties Shareholders and no Shareholder shall have the right to Parent and Purchaser. No bond object, dissent, protest or otherwise contest the same.
(e) By such Shareholder’s execution of this Agreement, each Shareholder agrees that:
(i) Purchaser shall be able to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to the settlement of any claims for indemnification of Purchaser pursuant to the Escrow Agreement or Article VIII below or any other actions required or permitted to be taken by the Shareholders’ Representative hereunder, and no party hereunder shall have any cause of action against Purchaser to the extent that Purchaser has relied upon the instructions or decisions of the Shareholders’ Representative. Notices ;
(ii) all actions, decisions and instructions of the Shareholders’ Representative shall be conclusive and binding upon all of the Shareholders and no Shareholder shall have any cause of action against the Shareholders’ Representative for any action taken, decision made or instruction given by the Shareholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Shareholders’ Representative;
(iii) notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except Shareholders for notices related to any action for which the Selling Parties’ consent is required under the terms purposes of this Agreement and the Escrow Agreement;
(iv) the provisions of this Section 1.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or applicable law. Each Selling Party agrees to receive correspondence from remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) as between such Shareholder and the other Shareholders, the Shareholders’ RepresentativeRepresentative shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement and every such determination made in good faith shall be conclusive and binding on the Shareholders and the Shareholders’ Representative may act on the opinion or advice of or information obtained from any solicitor, including in electronic form.attorney, banker, broker, accountant or other expert and shall not be responsible for any loss occasioned by so acting;
(bvi) The such Shareholder shall, together with all of the other Shareholders, jointly and severally indemnify the Shareholders’ Representative from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Shareholders’ Representative by Purchaser, the Company, other Shareholders, or any other person in connection with this Agreement and in suing for and recovering any sum due to the Shareholders or any of them under this Agreement;
(vii) in performing the functions specified in this Agreement and the Escrow Agreement, the Shareholders’ Representative shall not be liable for to any act done or omitted hereunder as Shareholder in the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative; and
(viii) the provisions of this Section 1.7 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Shareholder, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Shareholders’ Representative and arising shall be paid out of or amounts remaining in connection with the acceptance or administration Indemnification Escrow Fund after satisfaction of his duties hereunderall claims of Purchaser against such fund. No provision of this Agreement shall require Upon application by the Shareholders’ Representative to expend or risk the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Indemnification Escrow Fund, Purchaser may in its own funds or otherwise incur any financial liability in sole and absolute discretion authorize the exercise or performance Escrow Agent to release a portion of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The the Indemnification Escrow Fund to the Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements reimbursement of fees and opinions prepared or presented by counsel or other professionals retained by it, and any action taken expenses incurred by the Shareholders’ Representative based on prior to such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions time. Nothing in this ARTICLE VIII, or any provision to Section 1.7(f) shall limit the contrary set forth in obligations of the Shareholders under Section 1.7(e)(vi). In carrying out his functions under this Agreement or the Option Agreement, the Shareholders’ Representative shall only have be permitted, in his discretion, to solicit from each of the power Shareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any necessary or authority to appropriate act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement)hereunder, and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amendingeach Shareholder, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted consistent with such Shareholder’s obligations pursuant to this Agreement and the Option AgreementSection 1.7(e)(vi) above, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case shall comply with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Partiessuch request.
Appears in 1 contract
Sources: Share Purchase Agreement (Sirf Technology Holdings Inc)
Shareholders’ Representative. In order to administer efficiently the determination of certain matters under this Agreement, each Vendor hereby irrevocably authorizing Shareholders’ Representative to act as each such Vendor's agent and representative with respect to all matters relating to this Agreement. Without limiting the generality of the foregoing, Shareholders’ Representative shall have full power and authority to make all decisions and take all actions relating to Vendors' respective rights, obligations and remedies under this Agreement including to receive and make payments, to receive and send notices (a) The Selling Partiesincluding notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification on behalf of Vendors and to defend against indemnification claims of Purchaser. All decisions and actions taken by adopting Shareholders’ Representative shall be binding upon all Vendors, and no Vendor shall have the right to object, dissent, and protest or otherwise contest the same. Purchaser shall be entitled to deal only with Shareholders’ Representative in respect of all matters arising under this Agreement and including to receive and make payments, to receive and send notices, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against Vendors or any one of them and to defend against indemnification claims of Vendors. All references in this Agreement to decisions and actions to be taken by Vendors or any one of them shall be deemed taken by Vendors or the transactions contemplated herebyrelevant one of them if such decisions or actions are taken by Shareholders’ Representative. All references in this Agreement to decisions and actions to be taken by Purchaser and directed to Vendors or any one of them shall be deemed directed to Vendors or the relevant one of them if such decisions or actions are directed by Purchaser to Shareholders’ Representative. In no event shall Purchaser be held responsible or liable for the application or allocation of any monies paid to Shareholders’ Representative by Purchaser, hereby irrevocably appoint and constitute K Laser as Purchaser shall be entitled to rely upon any notice provided to Purchaser by Shareholders’ Representative or action taken by Shareholders’ Representative acting within the scope of his authority. Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification or a principal defense shall be ineffective by reason only of it having been made or given to or by a Vendor directly if each of Purchaser and such Vendor consent by virtue of not objecting to such dealings without the intermediary of Shareholders’ Representative. Each of the Vendors shall pay the Shareholders’ Representative reasonable compensation as agreed to from time to time for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment acting as the Shareholders’ Representative. Such agency may be changed by For further clarification, it is confirmed the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Shareholders Representative shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except seeking no compensation for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder acting as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant from the Closing Date to March 1, 2016. Each of the advice of counsel Vendors shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative from all expenses and hold it harmless against any loss, liability or expense costs incurred without gross negligence or bad faith on in his capacity acting as the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithShareholders Representative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Mr. H▇▇ ▇▇▇▇ T▇▇▇ shall be constituted and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser appointed as the Shareholders’ Representative agent for and on behalf of the Selling Partiesall Shareholders as their attorney-in-fact and representative, with the authority (i) to perform do any and all things and to execute any and all documents or other papers, in each such Shareholder’s name, place and stead, in any way in which each such Shareholder could do if personally present, in connection with this Agreement and the obligations applicable Transaction Documents and the transactions contemplated hereby and thereby, and (ii) to amend, cancel or extend, or waive the terms of, this Agreement and any of the Transaction Documents in a manner that would not disproportionately affect such Shareholder as compared to the other Shareholders, The power of attorney granted hereby is coupled with an interest. The Shareholders shall be bound by all actions taken and documents executed by the Shareholders’ Representative set forth in this Agreement pursuant hereto, and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond Investor shall be required entitled to rely on any action or decision of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall may, by giving not be liable for any act done or omitted hereunder less than thirty (30) days written notice to the other Parties, resign as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to under this Agreement. In the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify event that the Shareholders’ Representative becomes unable or unwilling to continue in his capacity as the Shareholders’ Representative under this Agreement, the Shareholders shall (by majority-in-interest) promptly appoint a successor Shareholders’ Representative by written notice to the Investor, and the appointment of such successor Shareholders’ Representative shall become effective only upon the Investor’s receipt of such written notice. Each Shareholder hereby agrees that any successor Shareholders’ Representative so selected by such Shareholder shall be entitled to act as such under this Agreement on behalf of such Shareholder. All references herein to the Shareholders’ Representative shall include any such successor Shareholders’ Representative. Except as otherwise expressly set forth herein, each Shareholder hereby consents to the taking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by such Shareholders under this Agreement. The Shareholders shall be bound by all actions taken by the Shareholders’ Representative in his capacity as the Shareholders’ Representative.
(c) In performing the functions specified in this Agreement, the Shareholders’ Representative shall not be liable to any Shareholder in the absence of gross negligence or willful misconduct on the part of the Shareholders’ Representative. Each Shareholder shall severally and not jointly, indemnify and hold it harmless the Shareholders’ Representative from and against any loss, liability or expense incurred without gross negligence or bad faith willful misconduct on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur , including any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements out-of-pocket costs and opinions prepared or presented by counsel or expenses and legal fees and other professionals retained by it, and any action taken legal costs reasonably incurred by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faithRepresentative.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract
Sources: Series a Convertible Preferred Shares Purchase Agreement (China BCT Pharmacy Group, Inc.)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative Representative, who shall initially be R▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, is constituted and appointed as agent for and on behalf of the Selling Parties, with the authority (i) to perform the obligations Pre-Closing Shareholders as of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Effective Time to give and receive notices and communications, (iii) to authorize delivery to Acquiror of funds from the Escrow Fund in satisfaction of claims by Acquiror, to object to such deliveries, to make claims on behalf of the Pre-Closing Shareholders, to agree to, negotiate, enter into settlements and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other expertscompromises of, and incur any other reasonable expenses, in connection withmake claims and comply with awards with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing, or otherwise as permitted hereunder. K Laser hereby accepts its appointment as the The Shareholders’ Representative. Such agency Representative may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Pre-Closing Shareholders from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and PurchaserAcquiror. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling PartiesPre-Closing Shareholders. Without limiting the generality of the foregoing, except for notices related the Shareholders’ Representative shall have the full power and authority to any action for which the Selling Parties’ consent is required under interpret all the terms and provisions of this Agreement and to consent to any amendment hereof or applicable law. Each Selling Party agrees to receive correspondence from the thereof in its capacity as Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith faith.
(c) The Shareholders’ Representative shall be given reasonable access to information about the Surviving Corporation and absence the reasonable assistance of negligence. The Selling Parties the Surviving Corporation’s officers and employees for purposes of performing its duties and exercising its rights hereunder, and shall severally have the right to reimbursement from the Escrow Fund of his reasonable fees and expenses (including attorneys’ fees and not jointly), according to each Selling Parties’ pro-rata interest the costs of experts and advisors) incurred in the shares of Everest, indemnify connection with his duties as the Shareholders’ Representative hereunder and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on as the part of the ShareholdersInvestors’ Representative and arising out of or in connection with under the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any Rollover Agreement.
(d) Any action taken by the Shareholders’ Representative based on such reliance pursuant to the authority granted in this Section 10.08 shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding effective and absolutely binding as the foregoing provisions in action of the Pre-Closing Shareholders under this ARTICLE VIIIAgreement. Acquiror may rely upon any decision, act, consent or any provision to the contrary set forth in this Agreement or the Option Agreement, instruction of the Shareholders’ Representative shall only have as being the power decision, act, consent or authority instruction of each and every Pre-Closing Shareholder. Acquiror is hereby relieved from any liability to act any Person for any acts done by them in accordance with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way such decision, act, consent or instruction of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesRepresentative.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Shareholders hereby irrevocably appoint R▇▇▇▇ ▇▇▇▇▇▇ (the “Shareholders’ Representative”) to act on behalf of the Shareholders with respect to all matters relating to this Article VII and constitute K Laser as the Escrow Agreement, including in considering and certifying the amount of any indemnification hereunder, in determining the post-closing purchase price adjustment pursuant to Section 1.4 hereof, in communicating with the Shareholders in appointing a successor escrow agent under the Escrow Agreement, in considering and acting with respect to any amendment or termination of this Agreement, and generally in performing all acts expressly required or permitted to be performed by the Shareholders’ Representative for pursuant hereto and pursuant to the Escrow Agreement. Lincoln Electric on behalf of the Selling Partiesone hand, and Lincoln Electric and the escrow agent on the other hand, shall have the right to deal exclusively with the authority (i) Shareholders’ Representative with respect to perform all matters hereunder and under the obligations Escrow Agreement, respectively, and neither Lincoln Electric nor the escrow agent shall have any liability to any Shareholder for any acts or omissions of the Shareholders’ Representative set forth in this Agreement and Representative, or any acts or omissions taken or not taken by Lincoln Electric or the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and escrow agent at the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required direction of the Shareholders’ Representative. Notices or communications Upon any distribution of funds to or from the Shareholders’ Representative (or to Parent shall constitute notice to one or from each more of the Selling PartiesShareholders upon written instruction of the Shareholders’ Representative) in accordance with the Agreement, the escrow agent and Lincoln Electric shall be deemed to have fully satisfied any and all obligations to the Shareholders under this Agreement and the Escrow Agreement with respect to the amount of such distribution. The Shareholders’ Representative shall have no liability to the Companies or the Shareholders with respect to actions taken or omitted to be taken in her capacity as the Shareholders’ Representative, except for notices related with respect to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence liability resulting primarily from the Shareholders’ Representative, including in electronic form.
(b) ’s gross negligence or willful misconduct. The Shareholders’ Representative shall not be liable for entitled to rely upon any act done or omitted hereunder as directions received from holders (the “Majority Holders”) of a majority of the Shares. If the Shareholders’ Representative while acting in good faith and without negligence and any act done is unable or omitted pursuant unwilling to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his perform her duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges required under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Escrow Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesMajority Holders shall promptly appoint a successor Shareholders’ Representative.
Appears in 1 contract
Sources: Share Purchase Agreement (Lincoln Electric Holdings Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement and the transactions contemplated hereby, Company hereby irrevocably appoint and constitute K Laser as appoints the Shareholders’ Representative for and on behalf as the representative of the Selling PartiesShareholders for the purposes set forth herein and for purposes of enforcing all obligations of Parent that are for the benefit of the Shareholders after the Effective Time. If the Shareholders’ Representative should dissolve, with disappear, liquidate, merge out of existence, enter into bankruptcy proceedings, or otherwise experience a similar event (or, in the authority case Shareholders’ Representative is an individual, die or become incapacitated) (ieach such event, a “Terminating Event”), its successor shall be appointed within fifteen (15) calendar days of such event by Persons holding a majority of the Shares of Common Stock as of immediately prior to perform the obligations Effective Time, and any such successor shall be a Shareholder, an officer of a Shareholder or an Affiliate of a Shareholder and shall agree in writing to accept such appointment. The choice of a successor Shareholders’ Representative appointed in any manner permitted above shall be final and binding upon all of the Shareholders. The decisions and actions of any successor Shareholders’ Representative shall be, for all purposes, those of the Shareholders’ Representative set forth in this Agreement as if originally named herein.
(b) A Terminating Event of any Shareholder shall not terminate the authority and the Option Agreement, (ii) to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(bc) The Shareholders’ Representative shall not be liable for have no liability (i) to any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or Shareholder in connection with the acceptance or administration of his duties performing its obligations hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision except to the contrary set forth in this Agreement or the Option Agreement, extent the Shareholders’ Representative shall only have acted maliciously in connection with the power or authority to act with respect to matters pertaining performance of its duties hereunder, and (ii) under this Agreement prior to the Selling Parties as a group and not matters pertaining Effective Time.
(d) By their acceptance of any payments pursuant to an individual Selling Party (for example but not by way Article II of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on Shareholders shall be deemed to have authorized the Shareholders’ Representative herein Representative, on their behalf and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amendingtheir name, modifying or waiving any provision of this Agreement or the Option Agreement) that to:
(i) results receive all notices or documents given or to be given to the Shareholders pursuant hereto or in the amounts payable hereunder connection herewith and to receive and accept service of legal process in connection with any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement suit or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities proceeding arising under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.Agreement;
Appears in 1 contract
Sources: Merger Agreement (Envestnet, Inc.)
Shareholders’ Representative. (a) The Selling PartiesBy execution hereof, by adopting this Agreement the Seller and each Shareholder hereby designates and appoints ▇▇▇▇▇▇▇▇ (the transactions contemplated hereby, hereby irrevocably appoint and constitute K Laser as the “Shareholders’ Representative Representative”), as agent for and on behalf of the Selling PartiesSeller and each Shareholder, and the true and lawful attorney in fact of the Seller and each Shareholder, with the full power and authority (i) to perform the obligations in each of the Seller’s and Shareholders’ Representative set forth in this Agreement and the Option Agreementnames, (ii) to give and receive notices and communications, (iii) to agree to, negotiatenegotiate and enter into, enter into on behalf of the Seller and provide amendments and supplements to each such Shareholder, amendments, consents and waivers in respect of under this Agreement pursuant to the terms set forth herein, to make and receive payments on behalf of the Option Seller and each Shareholder pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, (iv) including the defense and/or settlement of any indemnification claims of any HealthStream Indemnified Person pursuant to retain legal counselArticle VIII, accountantsto take all actions authorized by the Escrow Agreement, consultants including defending or settling any claims thereunder and other expertsreleasing and transferring any of the Escrowed Cash to HealthStream in accordance with the terms set forth therein, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as All such actions of the Shareholders’ RepresentativeRepresentative shall be deemed to be facts ascertainable outside this Agreement and shall be binding on the Seller and the Shareholders. Such agency may be changed by a vote or written consent by the holders of a majority in interest of the shares of Everest capital stock of the Selling Parties Company immediately prior to the consummation of the Restructuring, voting in the same manner as would have been voted in accordance with the organizational documents of the Company as in effect immediately prior to the Restructuring (the “Majority Holders”), from time to time upon not less than ten (10) days’ prior written notice to all HealthStream. If at any time the Shareholders’ Representative resigns, dies or becomes incapable of acting, the Majority Holders shall choose another Person to act as the Shareholders’ Representative under this Agreement. Neither the Seller nor the Shareholders may make a claim for indemnity against HealthStream pursuant to this Agreement except through the Shareholders’ Representative, who shall make such a claim only upon the written direction of the Selling Parties Majority Holders.
(b) Once the Shareholders’ Representative has initiated a claim for indemnity, all acts and to Parent decisions of the Shareholders’ Representative in connection with such matter shall be binding on the Seller and Purchaserall the Shareholders. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall receive no compensation for services provided hereunder. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling PartiesShareholders.
(c) The Shareholders’ Representative will be entitled to engage such counsel, except experts and other agents as the Shareholders’ Representative deems necessary or proper in connection with performing the Shareholders’ Representative’s obligations hereunder, and will be promptly reimbursed by the Seller and the Shareholders for notices related to any action for which all reasonable expenses, disbursements and advances incurred by the Selling PartiesShareholders’ consent is required under the terms of this Agreement or applicable lawRepresentative in such capacity upon demand. Each Selling Party agrees to receive correspondence from The Shareholders shall severally indemnify and hold harmless the Shareholders’ Representative, including based on the percentage of the total number of shares of the Seller held by each such Shareholder as set forth in electronic form.
(bSection 2.4(a) of the Company Disclosure Schedule, of any and all Damages that are incurred by the Shareholders’ Representative as a result of actions taken, or actions not taken, by the Shareholders’ Representative herein, except to the extent that such Damages arise from the gross negligence or willful misconduct of the Shareholders’ Representative. The Shareholders’ Representative shall not be liable to the Seller or the Shareholders for any act done or omitted hereunder as Shareholders’ Representative, excluding acts which constitute gross negligence or willful misconduct.
(d) All amounts received by the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to on behalf of the advice of counsel shall Seller under this Agreement will be conclusive evidence of such good faith and absence of negligence. The Selling Parties shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify promptly paid by the Shareholders’ Representative to the Seller; provided, however, that the Shareholders’ Representative will be entitled to set off any amounts payable to the Shareholders’ Representative under this Section 10.12(d) against amounts otherwise payable to the Seller pursuant to this Section 10.12(d) or released Escrowed Cash for the benefit of the Seller.
(e) This appointment and hold it harmless against grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any lossact of the Seller or the Shareholders (except as otherwise provided herein) or by operation of law, liability whether by the death or expense incurred without gross negligence incapacity of any Shareholder or bad faith on by the part occurrence of any other event. A decision, act, consent or instruction of the Shareholders’ Representative and arising out in respect of or in connection with the acceptance or administration of his duties hereunder. No provision of any action under this Agreement or the Escrow Agreement shall require constitute a decision of the Seller and all of the Shareholders and shall be final, binding and conclusive upon the Sellers, the Shareholders, and HealthStream may rely upon any decision, act, consent or instruction of the Shareholders’ Representative hereunder as being the decision, act, consent or instruction of the Seller and each and every such Shareholder. HealthStream shall be able to rely conclusively on the proper distribution of such amounts by the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively Seller upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken receipt by the Shareholders’ Representative based on of such reliance shall be deemed conclusively amounts. HealthStream is hereby relieved from any liability to have been taken in good faith.
any Person (c) Notwithstanding including the foregoing provisions in this ARTICLE VIIISeller, any Shareholders or any provision other Shareholder Indemnified Person) for any acts done by them in accordance with such decision, act, consent or instruction of the Shareholders’ Representative, to the contrary set forth in this Agreement or the Option Agreement, extent delegated to the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party hereunder.
(for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreementf) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) The provisions of this Section 8.1(c)10.12 are independent and severable, without first obtaining are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Person may have in connection with the prior written approval of the Selling Partiestransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthstream Inc)
Shareholders’ Representative. (a) The Selling Parties, by adopting this Agreement Each of the Shareholders and the transactions contemplated hereby, Principal Shareholders hereby irrevocably appoint and constitute K Laser as appoints the Shareholders’ Representative for as his, her or its representative and true and lawful attorney-in-fact with full power, in his name and on behalf of the Selling Partieshis behalf, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) act according to give and receive notices and communications, (iii) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as the Shareholders’ Representative. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties from time to time upon not less than ten (10) days’ prior written notice to all of the Selling Parties and to Parent and Purchaser. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from in the Shareholders’ Representative’s absolute discretion, including and in electronic form.
(b) general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall inform each Shareholder and Principal Shareholder, as applicable, of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by him in connection with the Escrow. The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as agent for the Shareholders and the Principal Shareholders’ Representative , as applicable, while acting in good faith and without negligence in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith and absence of negligencefaith. The Selling Parties Shareholders and the Principal Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. No provision of this Agreement shall require the Shareholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. .
(b) The Shareholders’ Representative may in good faith , the Principal Shareholders, Chilco, KUBUK and the Escrow Agent shall be entitled to rely conclusively upon the information, reports, statements and opinions prepared any communication or presented by counsel writing given or other professionals retained by it, and any action taken executed by the Shareholders’ Representative based on such reliance shall Representative. All communications or writings to be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision sent to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), Shareholders and the powers conferred on the Principal Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted applicable, pursuant to this Agreement may be addressed to the Shareholders’ Representative, and any communication or writing so sent shall be deemed notice to all of the Shareholders and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling PartiesPrincipal Shareholders hereunder.
Appears in 1 contract
Shareholders’ Representative. (a) The Selling PartiesBy virtue of the Necessary Shareholder Approval, by adopting this Agreement the Shareholders shall be deemed to have agreed to appoint T▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as their agent and the transactions contemplated herebyattorney-in-fact, hereby irrevocably appoint and constitute K Laser as the Shareholders’ Representative for and on behalf of the Selling Parties, with the authority (i) to perform the obligations of the Shareholders’ Representative set forth in this Agreement and the Option Agreement, (ii) Shareholders to give and receive notices and communications, to agree to the adjustment (iiiif any) of the Merger Consideration pursuant to the terms of the Agreement, to object to the foregoing adjustments, to agree to, negotiate, enter into settlements and provide amendments compromises of, and supplements comply with Orders with respect to such Legal Proceedings, to assert, negotiate, enter into settlements and waivers compromises of, and comply with Orders with respect to, any other Legal Proceeding by Buyer against the Shareholders or by the Shareholders against Buyer, in respect of each case relating to this Agreement and or the Option Agreement, (iv) to retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection withtransactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of, any or all of the foregoing. K Laser hereby accepts its appointment as , or (ii) specifically mandated by the Shareholders’ Representativeterms of this Agreement. Such agency may be changed by the holders of a majority in interest of the shares of Everest of the Selling Parties Shareholders from time to time upon not less than ten thirty (1030) days’ days prior written notice to B▇▇▇▇; provided, however, that (A) the Shareholders’ Representative may not be removed unless all Shareholders agree to such removal and to the identity of the Selling Parties substituted agent and to Parent and Purchaser(B) the Shareholders’ Representative may resign at any time. Notwithstanding the foregoing, a resignation of the Shareholders’ Representative or other vacancy in the position of Shareholders’ Representative may be filled by an appointee of either Key Shareholder. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative shall not receive any compensation for his, her or its services. Notices or communications to or from the Shareholders’ Representative to Parent shall constitute notice to or from each of the Selling Parties, except for notices related to any action for which the Selling Parties’ consent is required under the terms of this Agreement or applicable law. Each Selling Party agrees to receive correspondence from the Shareholders’ Representative, including in electronic form.
(b) The Shareholders’ Representative shall not be liable to the Shareholders for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith and without negligence and any act done or omitted pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith and absence of negligencereasonable judgment. The Selling Parties Shareholders shall severally (and not jointly), according to each Selling Parties’ pro-rata interest in the shares of Everest, indemnify the Shareholders’ Representative and hold it the Shareholders’ Representative harmless against any loss, liability Liability or expense incurred without gross negligence or bad faith on the part of the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of his the Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. No provision A decision, act, consent or instruction of the Shareholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to the terms of this Agreement, shall require constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders, and Buyer may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative to expend as being the decision, act, consent or risk its own funds or otherwise incur any financial liability in the exercise or performance instruction of any of its powers, rights, duties or privileges under this Agreement on behalf of any Selling Parties. The Shareholders’ Representative may in good faith rely conclusively upon the information, reports, statements and opinions prepared or presented by counsel or other professionals retained by it, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith.
(c) Notwithstanding the foregoing provisions in this ARTICLE VIII, or any provision to the contrary set forth in this Agreement or the Option Agreement, the Shareholders’ Representative shall only have the power or authority to act with respect to matters pertaining to the Selling Parties as a group and not matters pertaining to an individual Selling Party (for example but not by way of limitation, an action against an individual Selling Party for his, her or its individual breach of a covenant in this Agreement), and the powers conferred on the Shareholders’ Representative herein and in the Option Agreement shall not authorize or empower the Shareholders’ Representative to do or cause to be done any action (including by amending, modifying or waiving any provision of this Agreement or the Option Agreement) that (i) results in the amounts payable hereunder to any Selling Party being distributed in any manner other than as permitted pursuant to this Agreement and the Option Agreement, (ii) alters the consideration payable to any Selling Party pursuant to this Agreement or the Option Agreement, or (iii) adds to or results in an increase of any Selling Party’s indemnity or other obligations or liabilities under this Agreement (including, for the avoidance of doubt, any change to the nature of the indemnity obligations), in each case with respect to clauses (i), (ii) and (iii) of this Section 8.1(c), without first obtaining the prior written approval of the Selling Parties.
Appears in 1 contract