Shareholders’ Representative. (a) From and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to: (i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement; (ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement; (iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually); (iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings; (v) object to such claims pursuant to Section 9.2 and Section 9.3; (vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement; (vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential. (viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders; (ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein; (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a); (xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and (xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein. (xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. p) The Sellers, by executing or approving this Agreement and the transactions contemplated hereby, irrevocably agree to appoint and constitute ▇▇▇▇▇▇▇ ▇▇▇▇▇ (a) From and after by the Closing, execution of this Agreement as the Shareholders’ Representative shall be authorized to actRepresentative, ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby accept his appointment) for and be on behalf of the Sellers as the true, exclusive and lawful agent and attorney-in-fact for and on behalf of each such Seller to act: (i) as the Shareholders’ Representative under this Agreement, and to have the right, power and authority to perform all actions (or refrain from taking any actions) the Shareholders’ Representative shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement and the transactions contemplated hereby; (ii) in the name, place and stead of each Seller (A) in connection with the Participating Equity Holders as Share Purchase and the transactions contemplated by this Agreement and otherwise bind all of in accordance with the Participating Equity Holders for the purposes terms and provisions of this Agreement, and (B) in any proceeding involving this Agreement, to do, or refrain from doing, all such further acts and things, necessary, appropriate or advisable in connection with any of the foregoing, including execute and deliver all such documents as the Shareholders’ Representative shall deem necessary or appropriate in connection with the Share Purchase, including this Agreement or agreeing to any modification or amendment of this Agreement in accordance with Section 9.10 of this Agreement and executing and delivering an agreement of such modification or amendment. The Participating Equity Holders Without derogating from the generality of the foregoing, as of the date hereof the Shareholders’ Representative shall be bound by all actions taken have the right, power and documents authority to: (i) give and receive notices, consents and communications, executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any including where this Agreement expressly require an action or decision consent of the Shareholders’ ' Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered ; (ii) authorize delivery to act, on behalf of each Buyer Indemnitees of the Participating Equity Holders applicable portion of the Aggregate Consideration or supplemental indemnification amounts, if any, in connection with the activities satisfaction of claims by Indemnified Parties, (iii) object to be performed such deliveries, (iv) agree to, negotiate, defend, resolve, enter into settlements and compromises of, any suit, proceeding, claim or dispute under this Agreement on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement Sellers and the Escrow Agreement, for the purposes comply with orders of courts and awards of arbitrators with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree respect to such amendments or modifications thereto as the Shareholders’ Representativeclaims, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter intointo and provide amendments and supplements to and waivers in respect of this Agreement, prosecute or defendincluding termination of this Agreement, settlements (vi) retain legal counsel, accountants, consultants, advisors and compromises ofother experts, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect toincur any other reasonable expenses, such claims, resolve any such claims, take any actions in connection with all matters and things set forth or necessary with respect to this Agreement and the resolution of any dispute relating hereto or to Ancillary Agreements and the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, hereby and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreementthereby; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (iivii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) 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 . The identity of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative may be changed by the joint consent of the Sellers upon not less than fifteen (15) days’ prior written notice to all of the Parties. The Shareholders’ Representative may resign from his position by providing a 15-day prior written notice to the Sellers and treat in such case, or in the case of death, disability, or inability of the Shareholders’ Representative, the other Seller shall become the replacement Shareholders’ Representative and notify the Parties. No bond shall be required of the Shareholders’ Representative, and the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided shall receive no compensation for in this Section 11.14(a);
(xi) withhold his services. Notices or communications to or from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative shall constitute notice to or from each of the Sellers. Any and any reasonable cost and expense incurred directly all decisions, acts, consents or indirectly instructions made or given by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent this Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by a decision of all the Shareholders’ Representative Sellers and shall be reimbursed in accordance with this Section 11.14(a)(xiii) final, binding and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyconclusive upon each and every Seller, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received Parent and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund Buyer shall be distributed entitled to the Participating Equity Holders promptly following the completion rely upon any such decision, act, consent or instruction of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information This power of attorney is both (i) not material coupled with an interest and (ii) the type that the Registrant treats as private or confidentialis irrevocable.
Appears in 1 contract
Shareholders’ Representative. (a) From and after Each of the Closing, Sellers hereby appoints the Shareholders’ Representative as its representative in respect of all matters arising under this Agreement or the Transactions, and the Shareholders’ Representative is and shall be authorized by each Seller to act, or refrain from acting, with respect to any actions to be taken by or on behalf of any Seller or the Shareholders’ Representative, including to enforce any rights granted to any Seller hereunder, in each case as the Shareholders’ Representative believes is necessary or appropriate under this Agreement and be the agent and attorney-in-fact Ancillary Agreements, for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this AgreementSellers. The Participating Equity Holders Sellers shall be bound by all such actions taken and documents executed by the Shareholders’ Representative, Representative and Parent Group and other Indemnified Parties no Seller shall be entitled permitted to rely exclusively on take any such actions. The Shareholders’ Representative shall not be liable to the Sellers for any error of judgment, or any action taken, suffered or decision omitted to be taken, in connection with the performance by the Shareholders’ Representative of the Shareholders’ Representative’s duties or the exercise by the Shareholders’ Representative of the Shareholders’ Representative’s rights and remedies under this Agreement or any Transaction Agreement, except in the case of its bad faith or willful misconduct. No bond shall be required of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by itit and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, solely at accountants or experts. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the cost and expense performance or observance of any of the Participating Equity Holders;
(ix) consent terms, covenants or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to any Ancillary Agreement. Without limiting the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment generality of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at full power and authority to interpret all the terms and provisions of this Agreement and the Ancillary Agreements, and to consent to any time waiver or amendment hereof or thereof on behalf of all Sellers and their respective successors, unless such waiver or amendment will be disproportionately adverse to a Seller relative to another Seller, in which case any such waiver or amendment shall require the consent of such Seller; provided that, the Shareholders’ Representative shall not have the authority to consent to any waiver or amendment on behalf of Highlander with respect to Section 7.02(e). Purchaser shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Shareholders’ Representative relating to this Agreement or any Ancillary Agreement.
(b) The Sellers will indemnify and hold harmless the Shareholders’ Representative from time to time to select and engage attorneys, accountants, investment bankers, advisors, against any and all costs or consultants expenses (including reasonable legal fees and obtain such other professional and expert assistance (in all cases as reasonably necessarydisbursements), judgments, fines, losses, damages, taxes or liabilities (“Losses”) arising out of or in connection with the Shareholders’ Representative’s execution and maintain performance of this Agreement and the Ancillary Agreements, in each case as such recordsLoss is suffered or incurred; provided that in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Shareholders’ Representative, as reasonably necessary the Shareholders’ Representative will reimburse the Sellers the amount of such indemnified Loss to the extent attributable to such gross negligence or desirable, and incur other reasonable out-of-pocket expenseswillful misconduct. The Shareholders’ Representative shall be entitled to reimbursement by the Sellers on a pro rata basis for all reasonable expenses, disbursements and advances (including fees and expenses disbursements of such advisors shall constitute expenses its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b)such capacity. The Expense Fund In no event will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant be required to this Agreement, any indemnification obligations pursuant to this Agreementadvance its own funds on behalf of the Sellers or otherwise. The Shareholders’ Representative Sellers acknowledge and agree that the foregoing indemnities will not be liable for any loss of principal of survive the Expense Fund other than as a result of its gross negligence, willful misconduct resignation or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion removal of the Shareholders’ Representative’s duties, Representative or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in termination of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialAgreement.
Appears in 1 contract
Sources: Business Combination Agreement (Magnum Opus Acquisition LTD)
Shareholders’ Representative. (a) From Each Shareholder, by the approval and after adoption of this Agreement, hereby irrevocably appoints the ClosingShareholders’ Representative to act as agent, proxy and attorney in fact for such Shareholder, and authorizes the Shareholders’ Representative with full power of substitution to execute the Escrow Agreement and to do any and all things that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement and the Shareholder Related Agreements, including (i) to take all action necessary to consummate the transactions contemplated by this Agreement and the Escrow Agreement, or the defense and/or settlement of any claims for which the Shareholders may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Article VIII, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the Shareholder Related Agreements, (iii) to authorize delivery to the Purchaser of any Escrow Shares in satisfaction of indemnification claims by the Purchaser in accordance with Article VIII, (iv) to make decisions on behalf of the Company and the Shareholders and take any and all additional action as is contemplated to be taken by or on behalf of the Shareholders by the terms of this Agreement or the Escrow Agreement, including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, (B) amendments to this Agreement, the Escrow Agreement or the Shareholder Related Agreements, and (C) the Estimated Closing Statement, the Final Closing Statement, the Estimated Net Debt, the Net Debt and the Net Debt Surplus; provided, however, that, in the event that a Shareholder may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Section 8.1(d), the Shareholders’ Representative shall be authorized to act, coordinate the defense and/or settlement of any such claims with the applicable Shareholder.
(b) All decisions and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, including without limitation (i) any agreement between the Shareholders’ Representative and Parent Group the Purchaser relating to the defense or settlement of any claims for which the Shareholders may be required to indemnify the Purchaser pursuant to Article VIII, (ii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Estimated Net Debt, the Net Debt or the Net Debt Surplus, and (iii) any agreement between the Shareholders’ Representative and the Purchaser relating to the Escrow Agreement or the determination of the Purchaser’s payment obligations under Section 1.4 or any other Indemnified Parties matter relating to Article I, shall be entitled binding upon all of the Shareholders, and no Shareholder shall have the right to rely exclusively object, dissent, protest or otherwise contest the same.
(c) The Shareholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Shareholders for any act done or omitted pursuant to this Agreement as the Shareholders’ Representative while acting in good faith and 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. The Shareholders shall severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss, liability or expense incurred without fraud or bad faith on any action the part of the Shareholders’ Representative and arising out of or decision in connection with the acceptance or administration of the Shareholders’ Representative’s duties under this Agreement. The Person serving as foregoing indemnification shall not be deemed exclusive of any other right or remedy to which the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, entitled apart from the provisions hereof.
(d) The Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the have full power and authority on behalf of each Shareholder to take any and all actions on behalf of, execute any and all instruments on behalf of, and execute or waive any and all rights of, the Participating Equity Holders to:Shareholders under this Agreement, the Escrow Agreement and the Shareholder Related Agreements.
(ie) executeBy his, as the Shareholders’ Representative, her or its approval of this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement, each Shareholder agrees, in addition to the foregoing, that:
(i) the Purchaser shall be entitled to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to Article VIII, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, and (C) any other actions required or permitted to be taken by the Shareholders’ Representative under this Agreement, the Escrow Agreement and any Shareholder Related Agreement, and no Shareholder shall have any cause of action against the Purchaser for any action taken by the Purchaser in reliance upon the instructions or decisions of the Shareholders’ Representative;
(ii) execute all actions, decisions and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion instructions of the Shareholders’ Representative for shall be conclusive and binding upon the accomplishment of the foregoing Company and all of the other terms, conditions Shareholders and no Shareholder shall have any cause of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of action against the Shareholders’ Representative for the accomplishment of the foregoingany action taken, in each case without having to seek decision made or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on instruction given by the Shareholders’ Representative and treat under this Agreement or the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided Escrow Agreement except for in this Section 11.14(a);
(xi) withhold from any cash payment fraud or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly willful misconduct by the Shareholders’ Representative in connection with its obligations hereunder the matters described in this Article IX;
(iii) the provisions of this Article IX are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or relating to remedies that any Shareholder may have in connection with the transactions contemplated hereby to by this Agreement, the extent Escrow Agreement and the Expense Fund has been depletedShareholder Related Agreements; and
(xiif) enforce payment the provisions of this Article IX shall be binding upon the executors, heirs, legal Representatives, personal Representatives, successor trustees and successors of each Shareholder, and any reference in this Agreement or the Escrow Agreement to a Shareholder or the Shareholders shall mean and include the successors to the rights of the Shareholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinor otherwise.
(xiiig) In connection with All of the performance indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing and any termination of its obligations hereunder and under the Paying Agent this Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligencehas no duties or obligations, willful misconduct and makes no warranties, express or fraud. implied, in each case, except those expressly set forth in this Agreement.
(h) The Shareholders’ Representative will hold these funds separate from hereby accepts its own fundsappointment and designation set forth in this Article IX, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed subject to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialindemnification provisions stated herein.
Appears in 1 contract
Sources: Share Purchase Agreement (Sorrento Therapeutics, Inc.)
Shareholders’ Representative. (a) From In order to efficiently administer (i) the determination of the Long Term Debt of EASTERN, Working Capital of EASTERN, and after the ClosingAdjusted Merger Consideration, (ii) the waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Shareholders may be required to indemnify NETWORK pursuant to Article VIII hereof, the Shareholders hereby designate Shareholder John D. Crawford as the▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇e (the "Shareholders’ ' Representative").
(b) The Shareholders hereby authorize the Shareholders' Representative shall be authorized (i) to actmake all decisions relating to the determination of the Long Term Debt of EASTERN, the Working Capital of EASTERN, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind Adjusted Merger Consideration, (ii) to take all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders necessary in connection with the activities waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Shareholders may be required to indemnify NETWORK pursuant to Article VIII hereof, (iii) to give and receive all notices required to be performed 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 Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated Shareholders by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;.
(viic) consent or agree toAll decisions and actions by the Shareholders' Representative, negotiateincluding, enter intowithout limitation, prosecute or defendany agreement between the Shareholders' Representative and NETWORK relating to the determination of the Long Term Debt of EASTERN, settlements and compromises ofWorking Capital of EASTERN, and demand arbitration and comply with Orders of Governmental Authorities the Adjusted Merger Consideration, or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution defense or settlement of any dispute relating hereto or claims for which the Shareholders may be required to the transactions contemplated by this Agreementindemnify NETWORK pursuant to Article VIII hereof, by arbitration, settlement or otherwise, and take or forego any or shall be binding upon all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing , and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative no Shareholder shall have the right at any time and from time to time to select and engage attorneysobject, accountantsdissent, investment bankers, advisors, protest or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by otherwise contest the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialsame.
Appears in 1 contract
Shareholders’ Representative. (a) From Each TARGET Shareholder constitutes and after appoints M▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the Closing“Shareholders’ Representative”) as its representative and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such TARGET Shareholder’s behalf in the absolute discretion of Shareholders’ Representative shall be authorized with respect to actall matters relating to this Agreement, including execution and be the agent and attorney-in-fact for and on behalf delivery of each any amendment, supplement, or modification of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all any waiver of the Participating Equity Holders for the purposes any claim or right arising out of this Agreement. The Participating Equity Holders shall be bound by all actions taken Agreement and to execute and deliver any other documents executed by as required, in the determination of the Shareholders’ Representative, to effect the provisions herein;
(ii) to execute and Parent Group deliver the Lock-Up Agreement to be delivered by each such TARGET Shareholder, and other Indemnified Parties shall thereafter to undertake, agree to, execute and deliver any amendments to such Lock-Up Agreement as determined to be entitled to rely exclusively on any action or decision necessary in the discretion of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;and
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holdergeneral, to or from Parent Group (on behalf of itself or any do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other Indemnified Party) relating to this Agreement, the Merger and any other matters instruments contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly deemed advisable by the Shareholders’ Representative in connection with its obligations hereunder or relating to effectuate the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution provisions of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinthis Section 6.02.
(xiiib) In connection This appointment and grant of power and authority is coupled with an interest and is in consideration of the performance of its obligations hereunder and under the Paying Agent mutual covenants made in this Agreement and is irrevocable and will not be terminated by any act of any TARGET Shareholder or by operation of Law, whether by the Escrow Agreement, death or incapacity of any TARGET Shareholder or by the occurrence of any other event. Each TARGET Shareholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.02. Each TARGET Shareholder agrees that Shareholders’ Representative shall have the right at no obligation or liability to any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, Person for any action taken or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred omitted by the Shareholders’ Representative in good faith, even if taken or omitted negligently, and each TARGET Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for pay to Shareholders’ Representative the purposes of paying directlyamount of, or reimbursing the reimburse Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Loss that Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than may suffer, sustain, or become subject to as a result of its gross negligence, willful misconduct any claim made or fraud. The threatened against Shareholders’ Representative will hold these funds separate from its own fundsin his capacity as such.
(c) The Company shall be entitled to rely upon any document or other paper delivered by Shareholders’ Representative as being authorized by TARGET Shareholders and each TARGET Shareholder, will and the Company shall not use these funds be liable to any TARGET Shareholder for its operating expenses any action taken or any other corporate purposes and will not voluntarily make these funds available omitted to its creditors be taken by the Company based on such reliance.
(d) Until all obligations under this Agreement shall have been discharged, TARGET Shareholders who, immediately prior to the Closing, are entitled in the event aggregate to receive more than fifty percent (50%) of bankruptcy. For tax purposesthe Exchange Shares, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the may, from time of Closing. Any funds remaining in the Expense Fund shall be distributed to time upon notice to the Participating Equity Holders promptly following Company, appoint a new Shareholders’ Representative upon the completion death, incapacity, or resignation of the Shareholders’ Representative’s duties. If, after the death, incapacity, or at such earlier time as the resignation of Shareholders’ Representative, a successor Shareholders’ Representative shall not have been appointed by TARGET Shareholders within fifteen (15) Business Days after a request by the Company, the Company may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant appoint a Shareholders’ Representative from among the TARGET Shareholders to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialfill any vacancy so created by notice of such appointment to TARGET Shareholders.
Appears in 1 contract
Sources: Share Exchange and Purchase Agreement (Pulse Evolution Group, Inc.)
Shareholders’ Representative. (a) From Each Shareholder constitutes and after the Closing, appoints the Shareholders’ Representative shall be authorized to actas its Representative and its true and lawful attorney in fact, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the full power and authority in its name and on behalf of the Participating Equity Holders toits behalf:
(i) execute, as the to act on such Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered behalf in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the absolute discretion of Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, Representative with respect to or from Parent Group (on behalf of itself or any other Indemnified Party) all matters relating to this Agreement, the Merger including execution and delivery of any other matters contemplated by amendment, supplement, or modification of this Agreement or by such other agreement any Transaction Document and any waiver of any claim or instrument (except to the extent that right arising out of this Agreement or such other agreement or instrument expressly contemplates that the provision of any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depletedagreement hereunder; and
(xiiii) enforce payment in general, to do all things and distribution to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other instruments contemplated by or deemed advisable to effectuate the provisions of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinthis Section 6.05.
(xiiib) In connection This appointment and grant of power and authority is coupled with an interest and is in consideration of the performance of its obligations hereunder and under the Paying Agent mutual covenants made in this Agreement and is irrevocable and will not be terminated by any act of any Shareholder or by operation of law, whether by the Escrow Agreement, death or incapacity of any Shareholder or by the occurrence of any other event. Each Shareholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.05. Each Shareholder agrees that Shareholders’ Representative shall have the right at no obligation or liability to any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, Person for any action taken or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred omitted by the Shareholders’ Representative in good faith, even if taken or omitted negligently, and each Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for pay to Shareholders’ Representative the purposes of paying directlyamount of, or reimbursing the reimburse Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Loss that Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than may suffer, sustain, or become subject to as a result of its gross negligence, willful misconduct any claim made or fraud. The threatened against Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated his capacity as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund such.
(c) The Company shall be distributed entitled to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, rely upon any document or at such earlier time as the other paper delivered by Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant as being authorized by Shareholders, and the Company shall not be liable to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) any Shareholder for any action taken or omitted to be taken by the type that the Registrant treats as private or confidentialCompany based on such reliance.
Appears in 1 contract
Shareholders’ Representative. (a) From By executing and delivering a Letter of Transmittal or by voting in favor of the adoption of this Agreement, the approval of the principal terms of the LCV Transaction, and by virtue of the consummation of the LCV Transaction or participating in the LCV Transaction and receiving the benefits thereof, including the right to receive consideration payable in connection with the LCV Transaction, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall be deemed to have approved of the designation of and appointed, and hereby irrevocably designates and appoints Shareholder Representative Services LLC as to act solely in its capacity as the true and lawful attorney-in-fact, agent and representative of the LCV Shareholders, the holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants (the “Shareholders’ Representative”) after Closing for all purposes in connection with this Agreement and the Closingagreements ancillary hereto with full power of substitution 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 hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) authorizing payments under or pursuant to this Agreement and authorizing the disbursements thereof to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants any and all consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; and (iv) with respect to any and all matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants relative to any amounts to be received by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants under this Agreement or any agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants on the one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall be not take any action adverse to any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants unless such action is also taken proportionately with respect to the others.
(b) Each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act, and be the agent and attorney-in-fact for and act on behalf of each such LCV Shareholder, notwithstanding any dispute or disagreement among the LCV Shareholders, holders of the Participating Equity Holders as contemplated LCV 2019 Notes and holders of the LCV 2020 Warrants, Subversive shall be entitled to rely on any and all action taken after Closing by the Shareholders’ Representative under this Agreement without any Liability to, or obligation to inquire of, any LCV Shareholder, any holder of the LCV 2019 Notes and otherwise bind any holder of the LCV 2020 Warrants notwithstanding any knowledge on the part of Subversive of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative after Closing shall be binding upon all of the Participating Equity Holders LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants and no LCV Shareholder, no holder of the LCV 2019 Notes and no holder of the LCV 2020 Warrants shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative after Closing, delivered in the manner provided in Section 8.03, shall be deemed to be notice to each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest and shall be irrevocable by such LCV Shareholder, such holder of the LCV 2019 Notes and such holder of the LCV 2020 Warrants in any manner or for any reason; and (v) in the event that the person or entity serving as the Shareholders’ Representative dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve or resigns as a representative of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants, then the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants shall appoint a new Shareholders’ Representative. The Participating Equity Holders Shareholders’ Representative may resign at any time.
(c) Each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants hereby acknowledges and agrees that no Subversive Party shall be bound have any Liability to any LCV Party with respect to, and the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants jointly and severally shall indemnify all Subversive Parties against, and agree to hold the Subversive Parties harmless from, any and all Losses incurred by all such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders’ Representative or by any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants or the designation, appointment or actions of the Shareholders’ Representative pursuant to the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants) or any other actions taken and documents executed by the Shareholders’ Representative, and Parent Group (ii) reliance by the Subversive Parties on, and actions taken by the Subversive Parties in reliance on, the instructions of, notice given by or any other Indemnified Parties shall be entitled to rely exclusively on any action taken or decision of omitted by the Shareholders’ Representative.
(d) The Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), which shall be funded by Subversive at the Closing in the amount of the Expense Fund. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of to pay or be reimbursed for any amounts payable to the Participating Equity Holdersfees, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its costs, expenses or other obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative pursuant to this Agreement and shall be reimbursed the agreements ancillary hereto acting in accordance with this Section 11.14(a)(xiii) and Section 11.14(b)its capacity as such. The Expense Fund LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants will be used for not receive any interest or earnings on the purposes of paying directly, or reimbursing Expenses Account and irrevocably transfer and assign to the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, ownership right that they may otherwise have had in any indemnification obligations pursuant to this Agreementsuch interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, negligence or willful misconduct or fraudmisconduct. The Shareholders’ Representative will hold these funds separate from its own corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will shall be treated as having been received and voluntarily set aside by the Participating Equity Holders LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants at the time of Closing. Any funds remaining The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. Without limiting the foregoing, each LCV Shareholder, each holder of the LCV 2019 Notes and each holder of the LCV 2020 Warrants shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Costs”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Shareholders’ Representative Cost is suffered or incurred; provided that, in the Expense Fund shall be distributed event that any such Shareholders’ Representative Cost is finally adjudicated to have been directly caused by the Participating Equity Holders promptly following the completion gross negligence or willful misconduct of the Shareholders’ Representative’s duties, the Shareholders’ Representative will reimburse the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants the amount of such indemnified Shareholders’ Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of its duties under this Agreement shall not be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants based on their respective Pro Rata Share. If not paid directly to the Shareholders’ Representative by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants any such Shareholders’ Representative Costs may be recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund and (ii) any Contingent Merger Consideration at such earlier time as any such amounts would otherwise be distributable to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants from their obligation to promptly pay such Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. The Shareholders’ Representative may also from time to time submit invoices to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants covering such Shareholders’ Representative Costs, which shall be paid by the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any LCV Shareholder, any holder of the LCV 2019 Notes and any holder of the LCV 2020 Warrants subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such LCV Shareholder, such holder of the LCV 2019 Notes and such holder of the LCV 2020 Warrants with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Shareholders’ Representative for such time as the Shareholders’ Representative may shall determine in its sole discretion. [***] Certain information If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants such amount shall be distributed to the Paying Agent for further distribution to the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants or otherwise. Notwithstanding anything in this document has been excluded Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the LCV Shareholders, holders of the LCV 2019 Notes and holders of the LCV 2020 Warrants set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this Section 8.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement. 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’s services pursuant to Regulation S-Kthis Agreement and any agreements ancillary hereto, Item 601(b)(10)except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or willful misconduct. Such excluded information is both (i) The Shareholders’ Representative shall not material and (ii) be liable for any action or omission pursuant to the type that the Registrant treats as private or confidentialadvice of counsel.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Reorganization (TPCO Holding Corp.)
Shareholders’ Representative. (a) From By executing and after delivering a Letter of Transmittal or by virtue of consummation of the Closing▇▇▇▇▇▇ Transaction, the Shareholders’ Representative shall be authorized to acteach ▇▇▇▇▇▇ Shareholder hereby irrevocably constitutes and appoints GRHP Management, LLC as its true and be the agent and lawful attorney-in-fact for and on behalf agent (the “Shareholders’ Representative”) with full power of each substitution 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 Participating Equity Holders transactions contemplated hereby and the exercise of all rights and the performance of all obligations hereunder, including: (i) receiving payments under or pursuant to this Agreement and disbursements thereof to the ▇▇▇▇▇▇ Shareholders, as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and otherwise bind all accepting service of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action process; (iii) giving or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to actagreeing to, on behalf of each of all the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement▇▇▇▇▇▇ Shareholders, the Paying Agent Agreement any and the Escrow Agreementall consents, for the purposes waivers and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated amendments deemed by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole reasonable and good faith discretion, may deem to be necessary or desirableappropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
and (iiiiv) give with respect to any and receive notices permitted or required all matters arising under this Agreement, (A) disputing or any other agreement or document entered into or executed in connection herewithrefraining from disputing, for and on behalf of each ▇▇▇▇▇▇ Shareholder relative to any Participating Equity Holderamounts to be received by the ▇▇▇▇▇▇ Shareholders under this Agreement or any agreements contemplated hereby, to or from Parent Group any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of itself each ▇▇▇▇▇▇ Shareholder, any dispute that may arise under, and exercise or refrain from exercising any other Indemnified Party) relating to remedies available under, this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iiiC) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment executing, on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent each ▇▇▇▇▇▇ Shareholder, any settlement agreement, release or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators other document with respect toto such dispute or remedy, such claims, resolve except in each case with respect to a dispute between any such claims, take any actions in connection with ▇▇▇▇▇▇ Shareholder on the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, one hand and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of on the other termshand, conditions of this Agreement; [***] Certain information provided that, in this document has been excluded pursuant each case, the Shareholders’ Representative shall not take any action adverse to Regulation S-K, Item 601(b)(10)any ▇▇▇▇▇▇ Shareholder unless such action is also taken proportionately with respect to the others. Such excluded information is both (i) The Shareholders’ Representative shall not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or waiver of its provisions that would
(i) result in any class of ▇▇▇▇▇▇ Shares receiving less of the Transaction Consideration in proportion to waive any terms and conditions other class of ▇▇▇▇▇▇ Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement providing on the date hereof), without the prior written consent of the holders of a majority of such affected class; (ii) result in any class of ▇▇▇▇▇▇ Shares receiving more of the Transaction Consideration in proportion to any other class of ▇▇▇▇▇▇ Shares (based on the proportionate relationship of each class to the others as set forth in this Agreement on the date hereof), without the prior written consent of the holders of a majority of each other class; or (iii) result in the rights or benefits to the Participating Equity Holders obligations of any holder of ▇▇▇▇▇▇ Shares being changed in accordance a manner adverse and disproportionate with the terms hereof and in other holders of ▇▇▇▇▇▇ Shares, without the manner provided herein;prior written consent of such holder.
(xb) take Each ▇▇▇▇▇▇ Shareholder hereby agrees that: (i) in all actions necessary or appropriate matters in the judgment of which action by the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek is required or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Timepermitted, the Surviving Corporation) Shareholders’ Representative is authorized to act on behalf of such ▇▇▇▇▇▇ Shareholder, notwithstanding any dispute or disagreement among the ▇▇▇▇▇▇ Shareholders, Subversive shall be entitled to rely on the Shareholders’ Representative any and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly all action taken by the Shareholders’ Representative in connection with its obligations hereunder under this Agreement without any Liability to, or relating obligation to inquire of, any ▇▇▇▇▇▇ Shareholder, notwithstanding any knowledge on the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution part of Subversive of any amounts payable to the Participating Equity Holderssuch dispute or disagreement; (ii) all decisions, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder actions, consents and under the Paying Agent Agreement and the Escrow Agreement, instructions by the Shareholders’ Representative shall be binding upon all of the ▇▇▇▇▇▇ Shareholders, and no ▇▇▇▇▇▇ Shareholder shall have the right at to object to, dissent from, protest or otherwise contest any time such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 8.03, shall be deemed to be notice to each ▇▇▇▇▇▇ Shareholder for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative is coupled with an interest and from time shall be irrevocable by such ▇▇▇▇▇▇ Shareholder in any manner or for any reason; and (v) in the event that the person or entity serving as the Shareholders’ Representative dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to time serve as a representative of the ▇▇▇▇▇▇ Shareholders, the holders of a majority of the ▇▇▇▇▇▇ Common Shares and ▇▇▇▇▇▇ Preferred Shares shall appoint a new Person to select be the Shareholders’ Representative.
(c) Each ▇▇▇▇▇▇ Shareholder hereby acknowledges and engage attorneysagrees that no Subversive Party shall have any Liability to any ▇▇▇▇▇▇ Party with respect to, accountantsand the ▇▇▇▇▇▇ Shareholders jointly and severally shall indemnify all Subversive Parties against, investment bankersand agree to hold the Subversive Parties harmless from, advisorsany and all Losses incurred by such Subversive Parties arising out of any breach of this Section 8.14 by the Shareholders’ Representative or by any ▇▇▇▇▇▇ Shareholder, or consultants the designation, appointment or actions of the Shareholders’ Representative pursuant to the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds or other property received by the Shareholders’ Representative (on behalf of any ▇▇▇▇▇▇ Shareholder) or any other actions taken by the Shareholders’ Representative, and obtain such (ii) reliance by the Subversive Parties on, and actions taken by the Subversive Parties in reliance on, the instructions of, notice given by or any other professional and expert assistance action taken or omitted by the Shareholders’ Representative.
(in all cases as reasonably necessaryd) The Shareholders’ Representative is hereby authorized to establish an account for the purposes of holding the Expense Fund (the “Expense Account”), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenseswhich shall be funded by Subversive at the Closing in an amount of $50,000. The fees and Shareholders’ Representative may use the Expense Fund to pay or be reimbursed for any fees, costs, expenses of such advisors shall constitute expenses or other obligations incurred by the Shareholders’ Representative and shall be reimbursed acting in accordance with this Section 11.14(a)(xiii) and Section 11.14(b)its capacity as such. The Expense Fund ▇▇▇▇▇▇ Shareholders will be used for not receive any interest or earnings on the purposes of paying directly, or reimbursing Expenses Account and irrevocably transfer and assign to the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, ownership right that they may otherwise have had in any indemnification obligations pursuant to this Agreementsuch interest or earnings. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, negligence or willful misconduct or fraudmisconduct. The Shareholders’ Representative will hold these funds separate from form its own corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will shall be treated as having been received and voluntarily set aside by the Participating Equity Holders ▇▇▇▇▇▇ Shareholders at the time of Closing. Any funds remaining The Parties agree that the Shareholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. Without limiting the foregoing, each ▇▇▇▇▇▇ Shareholder shall, to the extent of its Pro Rata Share, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless from and against any and all costs, expenses (including the fees and expenses of its counsel), Losses or Liabilities (collectively, “Shareholders’ Representative Costs”) incurred by the Shareholders’ Representative arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement, in each case as such Shareholders’ Representative Cost is suffered or incurred; provided that, in the Expense Fund shall be distributed event that any such Shareholders’ Representative Cost is finally adjudicated to have been directly caused by the Participating Equity Holders promptly following the completion gross negligence or willful misconduct of the Shareholders’ Representative’s duties, the Shareholders’ Representative will reimburse the ▇▇▇▇▇▇ Shareholders the amount of such indemnified Shareholders’ Representative Cost to the extent attributable to such gross negligence or willful misconduct. Any expense incurred by the Shareholders’ Representative in connection with the performance of its duties under this Agreement shall not be the personal obligation of the Shareholders’ Representative but shall be payable by and attributable to the ▇▇▇▇▇▇ Shareholders based on their respective Pro Rata Share. Notwithstanding anything to the contrary in this Agreement, the Shareholders’ Representative shall be entitled and is hereby granted the right to set off and deduct any unpaid or non-reimbursed expenses and unsatisfied liabilities incurred by the Shareholders’ Representative in connection with the performance of its duties hereunder from (i) the Expense Fund or (ii) any Contingent Transaction Consideration at such earlier time as any such amounts would otherwise be distributable to the ▇▇▇▇▇▇ Shareholders, provided that, while this Section 8.14(d) allows the Shareholders’ Representative to be paid form the aforementioned sources of funds, this does not relieve the ▇▇▇▇▇▇ Shareholders from their obligation to promptly pay the Shareholders’ Representative Costs as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it under applicable Law. The Shareholders’ Representative may also from time to time submit invoices to the ▇▇▇▇▇▇ Shareholders covering such Shareholders’ Representative Costs, which shall be paid by the ▇▇▇▇▇▇ Shareholders promptly following the receipt thereof based on their respective Pro Rata Share. Upon the request of any ▇▇▇▇▇▇ Shareholder, subject to applicable confidentiality obligations, the Shareholders’ Representative shall provide such ▇▇▇▇▇▇ Shareholder with an accounting for all expenses and liabilities paid by the Shareholders’ Representative in its capacity as such. The Expense Fund shall be retained in whole or in part by the Shareholders’ Representative for such time as the Shareholders’ Representative may shall determine in its sole discretion. [***] Certain information If the Shareholders’ Representative shall determine in its sole discretion to return all or any portion of the Expense Fund to the ▇▇▇▇▇▇ Shareholders, such amount shall be distributed to the ▇▇▇▇▇▇ Shareholders in accordance with their respective Pro Rata Share as set forth on the Payment Schedule. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the ▇▇▇▇▇▇ Shareholders or otherwise. Notwithstanding anything in this document has been excluded pursuant Agreement to Regulation Sthe contrary, any restriction or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-Kparties otherwise applicable to, Item 601(b)(10)the ▇▇▇▇▇▇ Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ Representative under this Section 8.14. Such excluded information is both (i) not material and (ii) The foregoing indemnities will survive the type that Closing, the Registrant treats as private resignation or confidentialremoval of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Shareholders’ Representative. (a) From In order to administer efficiently the rights and after obligations of the ClosingShareholders under this Agreement, the Shareholders hereby designate and appoint ▇▇▇▇▇ as the Shareholders’ Representative shall be authorized ' Representative, to act, and be serve as the Shareholders' agent and attorney-in-fact for and on behalf of each the limited purposes set forth in this Agreement.
(b) Each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by Shareholders hereby appoints the Shareholders’ Representative' Representative as such Shareholder's agent, proxy and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision attorney-in-fact, with full power of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationsubstitution, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders for all purposes set forth in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreementincluding, for the purposes and with the powers and authority hereinafter set forth which shall includewithout limitation, the full power and authority on such Shareholder's behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to consummate the transactions contemplated by this Agreement, by arbitration(ii) to disburse any funds received hereunder to the Shareholders, settlement (iii) to execute and deliver on behalf of each Shareholder any amendment or otherwisewaiver under this Agreement, and take to agree to resolution of all Adjustments pursuant to Section 1.4 or forego any or 10, and of all actions permitted or required of any Participating Equity Holder or necessary in Claims hereunder, (iv) to retain legal counsel and other professional services, at the sole discretion expense of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance by the Shareholders' Representative of its obligations hereunder this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under the Paying Agent this Agreement and the Escrow 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 Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders’ Representative shall have Shareholders to enforce the right at rights of the Shareholders under this Agreement, and any time and from time action taken with respect to time any Adjustment or Claim (including any action taken to select and engage attorneysobject to, accountantsdefend, investment bankers, advisors, compromise or consultants and obtain agree to the payment of such other professional and expert assistance (in all cases as reasonably necessaryAdjustment or Claim), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred be effective if approved in writing by the Shareholders’ ' Representative and the holders of a majority of the Corporations' Stock (including any Corporations' Stock held by the Shareholders' Representative), or, in the case of 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 Corporations' Stock immediately prior to the Closing, and that each and every action so taken shall be reimbursed in accordance with this Section 11.14(a)(xiii) binding and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyconclusive on every Shareholder, whether or not such Shareholder had notice of, or reimbursing the Shareholders’ Representative forapproved, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct such amendment or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund waiver.
(d) ▇▇▇▇▇ shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time serve as the Shareholders’ ' Representative may determine in its sole discretionuntil he resigns or is otherwise unable or unwilling to serve. [***] Certain information in In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporations' Stock immediately prior to the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to United of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) From Each Seller hereby irrevocably makes, constitutes and after the Closingappoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as his, the Shareholders’ Representative shall be authorized to act, and be the her or its exclusive agent and true and lawful attorney-in-fact for with full power of substitution to do any and on behalf all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or including but not limited to: (i) make all actions permitted or required decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any Participating Equity Holder amounts payable or necessary in distributable to the sole discretion Sellers hereunder; (iii) execution and delivery, on behalf of Sellers, of the Shareholders’ Representative for the accomplishment of the foregoing Escrow Agreement and all of the any other terms, conditions of document required by this Agreement; [***] Certain information in this document has been excluded (iv) receipt of payments hereunder and under the Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of notices and communications pursuant to Regulation S-Kthis Agreement and the Escrow Agreement; (vi) administration of this Agreement and the Cash Escrow Agreement, Item 601(b)(10). Such excluded information is both including the resolution of any dispute or claim; (i) not material and (iivii) the type that the Registrant treats as private resolution, settlement, or confidential.
compromise of any claim for indemnification asserted against Sellers pursuant to 5.1(a); (viii) consult with legal counselasserting, independent public accountants and other experts selected by it, solely at the cost and expense on behalf of the Participating Equity Holders;
Sellers, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to any amendment to this Agreement Agreement, or to waive waiver of any of its terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof conditions; and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Seller or other Person under any circumstance. Parent Group In the event that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is unwilling or unable to serve as Shareholders’ Representative, then each Seller hereby irrevocably makes, constitutes and their respective Affiliates appoints S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement. In the event that both ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ are unwilling or unable to serve as Shareholders’ Representative, then each Seller hereby irrevocably makes, constitutes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement.
(including after b) Buyer and the Effective Time, the Surviving Corporation) Escrow Agent shall be entitled to rely on fully protected in dealing with the Shareholders’ Representative under this Agreement and treat may rely upon the authority of the Shareholders’ Representative to act as agent of the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash Sellers. Any payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable by Buyer to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly under this Agreement shall be considered a payment by Buyer to the Sellers. The appointment of the Shareholders’ Representative is coupled with an interest and shall be irrevocable by any Seller in connection with its obligations hereunder any manner and for any reason. This power of attorney shall not be affected by the disability or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each incapacity of the Participating Equity Holders’ respective interests thereinprincipal pursuant to any applicable law.
(xiiic) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, The Shareholders’ Representative acknowledges that the Shareholders’ Representative shall have has carefully read and understands this Agreement and the right at any time form of Individual Seller Agreement to be entered into by the Minority Shareholders, hereby accepts such appointment and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)designation, and maintain such records, represents that he will act in his capacity as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative in strict compliance with and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for conformance to the purposes provisions of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. (aA) From Each of the Shareholders hereby irrevocably constitutes and after the Closingappoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Shareholders’ Representative shall be authorized to actIII, and be the ▇▇. ▇▇▇▇▇▇ hereby accepts such appointment, as their agent and attorney-in-fact for with full power of substitution and revocation to do any and all things and execute any and all documents on his or her behalf which may be necessary, convenient or appropriate with respect to: (i) amendments to this Agreement, provided that no amendment shall materially adversely affect the rights of each any one Shareholder relative to any other Shareholders; (ii) the execution of documents and certificates pursuant to this Agreement; (iii) determination of the Participating Equity Holders as contemplated by this Agreement Working Capital Adjustment; (iv) receipt and otherwise bind all forwarding of the Participating Equity Holders for the purposes of notices and communications pursuant to this Agreement; and (v) negotiation and compromise of any indemnity claims made by Buyer hereunder. The Participating Equity Holders shall be bound by Shareholders Representative is authorized (i) to take all actions taken and documents executed by which the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action Shareholders Representative considers necessary or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders desirable in connection with the activities defense, pursuit or settlement of any determinations relating to the matters described above, including to ▇▇▇, defend, negotiate, settle and compromise any such claims for indemnification made by Buyer pursuant to this Agreement or any of the agreements or transactions contemplated hereby; (ii) to engage and employ agents and representatives (including accoutants, legal counsel and other professionals) and to incur such other expenses as he shall deem necessary or prudent in connection with the administration of the foregoing; and (iii) to take all other actions and exercise all other rights which the Shareholders Representative (in his sole discretion) considers necessary or appropriate in connection with the foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Shareholders Representative shall have no duties or responsibilities except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Shareholder shall otherwise exist against the Shareholders Representative.
(B) The Buyer and DBI shall be performed fully protected in dealing with ▇▇. ▇▇▇▇▇▇ under this Agreement and may rely upon the authority of ▇▇. ▇▇▇▇▇▇ to act as the Shareholders Representative. The Shareholders Representative is authorized to act on the Shareholders' behalf notwithstanding any dispute or disagreement among the Shareholders. The appointment of ▇▇. ▇▇▇▇▇▇ is coupled with an interest and is irrevocable by any Shareholder in any manner or for any reason, unless written revocation is personally delivered to ▇▇. ▇▇▇▇▇▇ and the Buyer on or prior to the time that action on behalf of the Participating Equity Holders Shareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to actions taken or proposed to be taken after receipt of such notice. This power of attorney shall not be affected by the death, disability or incapacity of any Shareholder.
(C) If at any time there is no person acting as Shareholders Representative for any reason, the Shareholders holding a majority interest in the Retained Stock shall choose a person to act as Shareholders Representative under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:.
(iD) execute, as Neither the Shareholders’ Representative, Shareholders Representative nor any agent employed by him shall be liable to any Shareholder relating to the performance of his duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and any agreement convincing evidence that the actions taken or instrument entered into not taken by the Shareholders Representative constituted fraud or delivered were taken or not taken in bad faith. The Shareholders Representative shall be indemnified and held harmless by the Shareholders against all costs, expenses and damages paid or incurred in connection with any action, suit, proceeding or claim to which the Merger and Shareholders Representative is made a party by reason of the transactions contemplated by fact that he was acting as the Shareholders Representative pursuant to this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are Shareholders Representative shall not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, be entitled to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that this Agreement the actions taken or such other agreement not taken by the Shareholders Representative constituted fraud or instrument expressly contemplates that any such notice were taken or communication not taken in bad faith. The Shareholders Representative shall be given protected in acting upon any notice, statement or received certificate believed by each Participating Equity Holder individually);
(iv) him to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders be genuine and to enforce and protect have been furnished by the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof appropriate person and in the manner provided herein;
(x) take all actions necessary acting or appropriate refusing to act in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of good faith on any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinmatter.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. (a) From The Company and after the ClosingSignificant Shareholders hereby authorize, direct and appoint the Shareholders’ ' Representative shall be authorized to actact as sole and exclusive agent, and be the agent and attorney-in-fact for and on behalf of each representative of the Participating Equity Holders as contemplated by this Agreement Significant Shareholders and otherwise bind the other holders of Company Shares, Company Options and Warrants, with full power of substitution with respect to all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders matters under this Agreement, the Paying Agent Agreement and the Escrow Agreement, including, without limitation, determining, giving and receiving notices and processes hereunder and thereunder, receiving certain distributions to or for the purposes benefit of the holders of the Company Shares, the Company Options and the Warrants, entering into any documents required or permitted under Section 8, contesting and settling any and all claims for indemnification pursuant to Section 8 hereof, resolving any other disputes hereunder (including disputes with respect to purchase price adjustments or calculations), performing the duties expressly assigned to the Shareholders' Representative hereunder and thereunder and to engage and employ agents and representatives and to incur such other expenses as the Shareholders' Representative shall reasonably deem necessary or prudent in connection with the powers foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of any holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) to take any action or provide any waiver, or receive any notice with respect to any claims for indemnification under Section 8 and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Shareholders' Representative consistent herewith, shall be absolutely and irrevocably binding on each holder of Company Shares, Company Options and Warrants (including the Significant Shareholders) as if such Person personally had taken such action, exercised such rights, power or authority hereinafter set forth or made such decision or determination in such Person's individual capacity, and no Person shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Significant Shareholders hereunder or pursuant to the Escrow Agreement or any action which Significant Shareholders, at their election, have the right to take hereunder or thereunder, shall includebe taken only by the Shareholders' Representative, and no Significant Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by the power Buyer to the Shareholders' Representative pursuant to Sections 2.3(c), 2.5(d) and authority 2.8 above shall be made on behalf of the Participating Equity Holders to:holders of Company Shares, Company Options and Warrants and shall constitute full performance of the obligations of the Buyer to the Shareholders' Representative pursuant to such sections with respect to such amounts. The Buyer shall not be liable for allocation of particular deliveries and payments of such amounts by the Shareholders' Representative. Notwithstanding the foregoing, the Shareholders' Representative shall not take any action on behalf of the Significant Shareholders without the approval of such action by a majority of the Significant Shareholders.
(ib) execute, as The appointment of the Shareholders’ Representative, ' Representative as each Significant Shareholder's attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to represent such Significant Shareholder with regard to this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
. The appointment of the Shareholders' Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Significant Shareholder pursuant to this Agreement (iiii) give and receive notices permitted will not be terminated by operation of law, death, mental or required under this Agreementphysical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to such Significant Shareholder or any proceeding in connection therewith, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other agreement or document entered into or executed in connection herewithevent, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle shall survive the delivery of an assignment by any Significant Shareholders of the whole or compromise any Proceeding relating fraction of its interest in any payment due to it under this Agreement, the Paying Agent Agreement or the Escrow Agreement; .
(c) The Shareholders' Representative hereby accepts the foregoing appointment and (iii) file agrees to serve as Shareholders' Representative, subject to the provisions hereof, for the period of time from and prosecute appeals after the date hereof without compensation except for the reimbursement from any judgment rendered in any the holders of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 Company Shares, the Company Options and Section 9.3;
(vi) pay the cost and expense Warrants, out of the Participating Equity Holders for Net Working Capital Holdback, of reasonable out of pocket expenses incurred by the Independent Accountant or any other payment on behalf Shareholders' Representative in its capacity as such. Each of the Participating Equity Holders Significant Shareholders and the Company hereby acknowledges and agrees, that in appointing Shareholders' Representative as their representative pursuant to the terms and provisions of this Agreement;Section 10.17, and as specified herein, the Shareholders' Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the Significant Shareholders or the holders of Company Shares, Company Options or Warrants whatsoever with respect to their actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by each and every one of the Significant Shareholders, the holders of Company Shares, the holders of the Company Options and the holders of the Warrants; provided, that such actions take by the Shareholders' Representative have been approved by a majority of the Significant Shareholders.
(viid) consent The provisions of this Section 10.17 shall in no way impose any obligations on the Buyer. In particular, notwithstanding any notice received by the Buyer to the contrary and absent Buyer's bad faith or agree towillful misconduct, negotiatethe Buyer (i) shall be fully protected in relying upon and shall be entitled to rely upon, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators shall have no liability to the Significant Shareholders with respect to, such claimsactions, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, decisions and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion determinations of the Shareholders’ ' Representative for and the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material FS Management Company and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on assume that all actions, decisions and determinations of the Shareholders’ ' Representative and treat the FS Management Company are fully authorized by all of the Significant Shareholders and the holders of the Company Shares, the Company Options and the Warrants.
(e) With respect to the rights and obligations of the Shareholders’ ' Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to Net Working Capital Holdback, the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement Shareholder Holdback and the Escrow Contingent Purchase Price in this Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by FS Management Company is hereby substituted for the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to throughout this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable and the FS Management Company hereby accepts such substitution and appointment for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax all such purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Merger Agreement (Teleflex Inc)
Shareholders’ Representative. (a) From By approving the Merger or by delivering a duly executed Letter of Transmittal to Buyer in exchange for the Merger Consideration to be paid in accordance with Section 2.7(a) or by delivering a duly executed Option Cancellation Agreement to Buyer in exchange for the Option Consideration to be paid in accordance with Section 2.8(a), as applicable, each Seller irrevocably approves the constitution and after the Closing, the Shareholders’ Representative shall be authorized to actappointment of, and be hereby irrevocably constitutes and appoints Fortis Advisors LLC as the agent sole, exclusive, true and lawful agent, representative and attorney-in-fact for of all Sellers and on behalf of each of them (the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the “Shareholders’ Representative”) with respect to any and all matters relating to, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on arising out of, or in connection with, this Agreement, including for purposes of taking any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered omitting to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed take any action on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders Sellers hereunder to:
(i) executeact for the Sellers with regard to all matters pertaining to indemnification under this Agreement, as including the power to defend, compromise, or settle any claims and to otherwise prosecute or pursue any litigation claims;
(ii) execute and deliver all amendments, waivers, Transaction Documents, certificates and documents that the Shareholders’ Representative, this Agreement and any agreement Representative deems necessary or instrument entered into or delivered appropriate in connection with the Merger and consummation of the transactions contemplated by this Agreement;
(iiiii) execute and deliver do or refrain from doing any further act or deed on behalf of the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as Sellers that the Shareholders’ Representative, Representative deems necessary or appropriate in its sole discretion, may deem necessary or desirable; provided, however, that discretion relating to the relative interests subject matter of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow AgreementShareholders’ Representative Engagement Agreement as fully and completely as the Sellers could do if personally present;
(iiiiv) give and or receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or Sellers under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;and
(v) object receive service of process in connection with any claims under this Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment act on behalf of the Participating Equity Holders pursuant to Sellers, except as expressly provided herein and in the terms of this Shareholders’ Representative Engagement Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders for purposes of Governmental Authorities or awards of arbitrators with respect toclarity, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion there are no obligations of the Shareholders’ Representative for in any ancillary agreement, schedule, exhibit or the accomplishment Company Disclosure Schedule. All actions, notices, communications and determinations by or on behalf of the foregoing Sellers in connection with this Agreement 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 Sellers and such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and no Seller shall have the other termsright to object, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-Kdissent, Item 601(b)(10). Such excluded information is both (i) not material and (ii) protest or otherwise contest the type that the Registrant treats as private or confidentialsame.
(viiib) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment Such appointment of the Shareholders’ Representative for the accomplishment of the foregoingmay be changed, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat may be replaced, by the number of Sellers who represented the majority of the right to vote immediately prior to the Merger. Notwithstanding the foregoing, the Shareholders’ Representative as may resign at any time by providing written notice of intent to resign to Sellers, which resignation shall be effective upon the duly appointed attorney-in-fact earlier of each Participating Equity Holder and as having (i) 30 days following delivery of such written notice or (ii) the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution appointment of a successor by the number of Sellers who represented the majority of the right to vote immediately prior to the Participating Equity Holders on Merger. The immunities and after rights to indemnification shall survive the date hereof, the amount resignation or removal of any fee payable to the Shareholders’ Representative or any member of the Advisory Group and the Closing or any reasonable cost and expense incurred directly or indirectly by termination of this Agreement a. No bond shall be required of the Shareholders’ Representative.
(c) Certain Sellers have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its obligations services under this Agreement and the Shareholders’ Representative Engagement Agreement (such Sellers, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group in its capacity as such (collectively, the “Shareholders’ Representative Group”) shall be liable for any act done or omitted hereunder or relating under the Shareholders’ Representative Engagement Agreement as Shareholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Shareholders’ Representative. The Shareholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Shareholders’ Representative may engage attorneys, accountants and other professionals and experts. The Shareholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Shareholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. Sellers shall indemnify and defend the Shareholders’ Representative Group and hold the Shareholders’ Representative Group harmless against any Loss, fee, judgment, claim, damage, liability, cost, expense (including costs incurred in connection with seeking recovery from insurers), fine or amounts paid in settlement incurred on the part of the Shareholders’ Representative (so long as the Shareholders’ Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties hereunder or under the Shareholders’ Representative Engagement Agreement including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Shareholders’ Representative and fees incurred in connection with seeking recovery from insurers (collectively, the “Shareholders’ Representative Expenses”). Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second, directly from Sellers , and third, from any Milestone Payments at the time such amounts become payable to the Sellers. The Sellers acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement and the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreementor thereby. Furthermore, the Shareholders’ Representative shall have not be required to take any action unless the right at any time Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses liabilities which may be incurred by the Shareholders’ Representative and in performing such actions.
(d) Buyer shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for entitled to rely on the purposes authority of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The (as evidenced by an instrument in writing signed by the Shareholders’ Representative will not be liable Representative) as the agent, representative and attorney-in-fact of the Sellers for all purposes under this Agreement and shall have no liability for any loss of principal of such reliance. No Seller may revoke the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion authority of the Shareholders’ Representative’s duties. By approving the Merger or by delivering a duly executed Letter of Transmittal to Buyer in exchange for the Merger Consideration to be paid in accordance with Section 2.7(a) or the Option Consideration to be paid in accordance with Section 2.8(a), or at such earlier time as each Seller hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to Regulation S-Kthis Section 2.10. The powers, Item 601(b)(10). Such excluded information is both immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder are coupled with an interest and shall be irrevocable and shall survive the death, incapacity, bankruptcy, liquidation or incompetence of such Seller.
(e) The Shareholders’ Representative shall be entitled to: (i) not material and rely upon Schedule I, (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 type that the Registrant treats as private applicable Seller or confidentialother party.
Appears in 1 contract
Sources: Agreement and Plan of Merger (AzurRx BioPharma, Inc.)
Shareholders’ Representative. (a) From Each Shareholder hereby irrevocably makes, constitutes and after the Closing, appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Shareholders’ Representative shall be authorized to actand as his, and be the her or its exclusive agent and true and lawful attorney-in-fact for with full power of substitution to do any and on behalf all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, hereby ratifying and take or forego any or confirming all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of that the Shareholders’ Representative for may do or cause to be done by virtue hereof, including but not limited to: (i) make all decisions relating to the accomplishment determination of the foregoing and all of purchase price adjustment under Section 2.3; (ii) subject to the other terms, conditions terms of this Agreement, make all decisions relating to the distribution of any amounts payable or distributable to such Shareholder hereunder; [***] Certain information in (iii) execution and delivery, on behalf of such Shareholder, of any document required to be executed by or on behalf of the Shareholders under this document has been excluded Agreement; (iv) receipt and forwarding of notices and communications pursuant to Regulation S-Kthis Agreement; (v) administration of this Agreement, Item 601(b)(10). Such excluded information is both including the resolution of any dispute or claim; (i) not material and (iivi) the type that the Registrant treats as private resolution, settlement, or confidential.
compromise of any claim for indemnification asserted against such Shareholder pursuant to Section 9.4(a) or elsewhere under this Agreement; (vii) asserting, on behalf of such Shareholder, claims for indemnification under Section 9.4(b) and resolving, settling or compromising all such claims; (viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense terminate or consent or agree to any termination of the Participating Equity Holders;
this Agreement or any provision hereof; (ix) consent or agree to any amendment to this Agreement Agreement, or to waive waiver of any of its terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof conditions; and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any such Shareholder or other Person under any circumstance.
(b) Buyer may rely upon the full power and authority of Shareholders’ Representative to act as agent of each Shareholder, and shall not be liable in any way whatsoever for any action Buyer takes or omits to take in reliance upon such power and authority. Parent Group Each Shareholder agrees that the appointment of Shareholders’ Representative and such agency, proxy and power of attorney under this Agreement are coupled with an interest and shall be irrevocable by any Shareholder in any manner and for any reason. This agency, proxy and power of attorney shall not be affected by the death, disability, incapacity or bankruptcy of the Shareholder pursuant to any applicable law or otherwise. Each Shareholder acknowledges and agrees that upon execution of this Agreement, any delivery by the Shareholders’ Representative of any waiver, amendment, agreement, opinion, certificate or other documents executed by the Shareholders’ Representative or any decisions made by the Shareholders’ Representative pursuant to this Section 6.15, such Shareholder shall be bound by such documents or decision as fully as if such Shareholder had executed and delivered such documents or made such decisions.
(c) Shareholders’ Representative acknowledges that he has carefully read and understands this Agreement, hereby accepts such appointment and designation, and represents that he will act in his capacity as Shareholders’ Representative in strict compliance with and conformance to the provisions of this Agreement.
(d) Each Shareholder agrees that in the event that ▇▇. ▇▇▇▇▇ or his successor refuses to serve, or is no longer capable of serving, as Shareholders’ Representative, the Shareholders shall appoint another person to serve as Shareholders’ Representative by a vote of the Shareholders who hold or held, as the case may be, a majority of the outstanding Shares of CECity immediately prior to the Closing. Each Shareholder agrees that ▇▇. ▇▇▇▇▇ or his successor may be removed from serving as Shareholders’ Representative by a vote of the Shareholders who hold or held, as the case may be, a majority of the outstanding Shares immediately prior to the Closing.
(e) Under no circumstances shall Shareholders’ Representative have any liability, under any fiduciary theory or otherwise, to the Shareholders for any act or omission to act of Shareholders’ Representative in such capacity, unless the Shareholder asserting such liability is able to prove that Shareholders’ Representative was guilty of gross negligence or willful misconduct. Each Shareholder shall, severally but not jointly and on a pro rata basis based upon their respective Affiliates Pro Rata Portion of the Shares, (including after i) indemnify, save and hold harmless Shareholders’ Representative from and against any and all Losses incurred in connection with, arising out of, resulting from, or incident to any act or omission to act of the Effective TimeShareholders’ Representative in his capacity as such, except to the Surviving Corporation) shall be entitled to rely on extent caused by the willful misconduct, gross negligence or bad faith of the Shareholders’ Representative and treat the (ii) reimburse Shareholders’ Representative as the duly appointed attorneyfor all out-inof-fact pocket expenses (including reasonable fees and expenses of each Participating Equity Holder attorneys, accountants and as having the duties, power and authority provided for in this Section 11.14(a);
(xiexperts) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the performing his duties as Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialhereunder.
Appears in 1 contract
Shareholders’ Representative. (a) From By the execution and delivery of this Agreement, subject to the terms of Section 8.16(b), each Shareholder irrevocably appoints, authorizes and directs Lemna Hunter (the “Shareholders’ Representative”) to act as such Shareholder’s agent, representative, proxy and attorney-in-fact (in his capacity as the Shareholders’ Representative) after the ClosingClosing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement, and exercising, on behalf of all the Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders’ Representative shall be authorized to acthave full power and authority, and be the agent and attorney-in-fact for and on behalf of each the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the Participating Equity Holders as transactions contemplated by hereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and otherwise bind to settle all such Claims on behalf of all the Participating Equity Holders for Shareholders and exercise any and all rights that the purposes of Shareholders are permitted or required to do or exercise under Article VII, and in connection with any Claim against or by the Shareholders under this Agreement. The Participating Equity Holders shall be bound by all actions taken appointment and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision agency of the Shareholders’ RepresentativeRepresentative is irrevocable, and shall be deemed to be coupled with an interest. The Person serving as Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders’ Representative may not resign nor be removedtaken hereunder and thereunder. In connection with such authorizationThe Parties agree that, as to all matters arising under this Agreement after the Closing Date, the Shareholders’ Representative shall be the sole Person authorized act for and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this AgreementShareholders, and to the extent the Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the Paying Agent Agreement Shareholders appoint the Shareholders’ Representative as their limited irrevocable attorney in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth Shareholders’ Representative which shall includehave the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon the Shareholders, such determination, action or event of the Shareholders’ Representative shall be conclusive and binding upon the Shareholders. The Shareholders’ Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 8.16, including, at the expense of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder. All such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder’s Pro Rata Portion. Under this Section 8.16(a), however, the power Shareholders’ Representative shall not have the right or obligation to, and authority on behalf shall not, represent any Shareholder in Indemnification Claims involving Individual Shareholder Breaches.
(b) Subject to the provisions of this Section 8.16(b), the Shareholders’ Representative shall serve as such from and after the Closing Date until the earlier of his removal or the completion of his obligations hereunder. The Shareholders’ Representative may be replaced or terminated at any time by those Shareholders holding a majority in interest of the Participating Equity Holders to:
(i) execute, Company’s shares immediately prior to the Closing. If the Person who is acting as the Shareholders’ Representative is terminated or replaced by the Shareholders or is unable or unwilling to continue to serve as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and otherwise ceases to agree to such amendments or modifications thereto as be the Shareholders’ Representative, his successor shall promptly be appointed by the Shareholders holding a majority in its sole discretion, may deem necessary or desirableinterest of the Company’s shares immediately prior to the Closing; provided, however, that the relative interests Shareholders’ Representative shall not voluntarily resign without the Shareholders first selecting a successor Shareholders’ Representative (reasonably satisfactory to Parent). Any successor to a Shareholders’ Representative shall for purposes of this Agreement be the Participating Equity Holders are not altered in a manner not contemplated by this AgreementShareholders’ Representative and from and after such time, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or term “Shareholders’ Representative” as used herein shall refer to any other agreement or document entered into or executed in connection herewith, for and on behalf successor. No appointment of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication a successor shall be given or received effective unless such successor agrees in writing to be bound by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;.
(viic) consent or agree to, negotiate, enter into, prosecute or defend, settlements The Shareholders’ Representative shall be allowed further access to and compromises of, permitted to review the Company’s books and demand arbitration records during normal business hours and comply with Orders make copies reasonably required of Governmental Authorities or awards (i) the working papers of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with Buyer and the resolution of any dispute Company relating hereto or to the transactions contemplated by Earn-Out Amount or any Claims and (ii) any supporting schedules, supporting analyses and other supporting documentation relating to the Earn-Out Amount or any Claims.
(d) The provisions set forth in this Section 8.16 shall not impose any liability or obligation on Buyer or the Company other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by arbitrationBuyer or the Company to the contrary, settlement or otherwiseBuyer shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion determinations of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type to assume that the Registrant treats as private or confidential.
(viii) consult with legal counselall actions, independent public accountants decisions and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment determinations of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group are fully authorized and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on binding upon the Shareholders’ Representative and treat the Shareholders’ Representative . The parties hereto have caused this Stock Purchase Agreement to be executed as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereoffirst written above. NTS TECHNICAL SYSTEMS By: /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: CFO NATIONAL TECHNICAL SYSTEMS, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity HoldersINC. By: /s/ Raffy Lorentzian Name: Raffy Lorentzian Title: CFO MECHTRONIC SOLUTIONS, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow AgreementINC. By: /s/ ▇▇▇▇ Spruce Name: ▇▇▇▇ Spruce Title: President, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneysCEO LA ▇▇▇ ASCENSIONS, accountantsLLC By: /s/ ▇▇▇▇ Spruce Managing Member NEW TECH I, investment bankersLP By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: General Partner QUATRO VENTURES, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.LLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Member /s/ Lemna Hunter Lemna Hunter /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Appears in 1 contract
Sources: Stock Purchase Agreement (National Technical Systems Inc /Ca/)
Shareholders’ Representative. (a) From Each Shareholder irrevocably authorizes, directs and after appoints S. ▇▇▇▇ ▇▇▇▇ (the Closing“Shareholders’ Representative”) to act as sole and exclusive agent, attorney-in-fact and representative of such Person and such Person’s heirs, representatives and successors to (i) take any and all actions (including without limitation executing and delivering any documents), incurring any costs and expenses for the account of the Shareholders, and making any and all determinations that may be required or permitted to be taken by the Shareholders in connection with this Agreement, including without limitation, all decisions relating to (A) the defense, settlement, or both of any Claims for which a QuadraMed Indemnitee may claim to be entitled to indemnification under this Article XI, (B) the Escrow Agreement, (C) the amendment or termination of this Agreement, and (D) any adjustment to the Merger Consideration contemplated by Section 2.3; and (ii) exercise such rights, power and authority as are incidental to the foregoing. Any actions, exercises of rights, power or authority and any decisions or determinations made by the Shareholders’ Representative shall be authorized absolutely and irrevocably binding on each Shareholder as if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s individual capacity.
(b) With respect to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated matters covered by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of or related to this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group (i) each Shareholder irrevocably relinquishes its right to act independently and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as than through the Shareholders’ Representative may not resign nor be removed. In connection with respect to such authorizationsubject matter (except with respect to appointment of a successor Shareholders’ Representative), (ii) no Shareholder shall have any right to institute any suit, action or proceeding against Tempus, QuadraMed, the Company or the Surviving Company or the Escrow Agent with respect to any such matter, any such right being irrevocably and exclusively delegated to the Shareholders’ Representative shall be the sole Person authorized and empowered to actwho may act on their behalf, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication each Shareholder shall be given deemed to have waived any claims such Shareholder may have or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby andassert, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary including those that may arise in the sole discretion of future, against the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) any action or inaction taken or not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly taken by the Shareholders’ Representative in connection with its obligations hereunder herewith, except such action or relating to inaction as may result from the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each willful misconduct or gross negligence of the Participating Equity HoldersShareholders’ respective interests therein.
Representative, and (xiiiiv) In the Shareholders hereby severally agree to indemnify the Shareholders’ Representative against, and hold him harmless from, any and all expenses, including, without limitation, attorneys’ fees and court costs, losses, costs, arbitration, tax liability and loss on investments suffered or incurred in connection with the performance or arising from or out of its obligations hereunder and under the Paying Agent Agreement and the Escrow this Agreement, except such acts or omissions as may result from the willful misconduct or gross negligence of the Shareholders’ Representative. Without limiting the generality of the foregoing, any notice hereunder delivered to QuadraMed or a QuadraMed Indemnitee by a Shareholder other than through the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)be of no effect, and maintain such records, as reasonably necessary each notice delivered by QuadraMed or desirable, and incur any other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by QuadraMed Indemnitee to the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiiieffective as against each Shareholder; provided, that QuadraMed and the other QuadraMed Indemnitees may elect at their sole discretion to give effect to any notice delivered by any Shareholder.
(c) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for may resign at any loss time upon thirty (30) days notice by submitting a written resignation to QuadraMed, with copies to all other Shareholders at their addresses on the stock books of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraudTempus. The Shareholders’ Representative will hold these funds separate from its own 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 In the event of bankruptcy. For tax purposesthe death, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion physical or mental incapacity or resignation of the Shareholders’ Representative’s duties, or at the Shareholders shall promptly (and in any event within thirty (30) days of notice of such earlier time as the event) appoint a successor Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Quadramed Corp)
Shareholders’ Representative. (a) From and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf By virtue of each approval of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision the consummation of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationMerger, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each execution of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Voting and Support Agreement, Support Agreement or Option Cancellation Agreement, the Paying Agent Agreement Equity Holders’ participation and receipt of the Merger Consideration and the Escrow Agreement, for Carve-out Plan Participants’ participation in the purposes Carve-out Plan and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf receipt of the Participating Equity Holders to:
(i) executeCarve-out Plan Amount, each Company Indemnifying Party approves the designation of and designates Shareholder Representative Services LLC as the Shareholders’ Representative, this Agreement as its, his or her true and any agreement lawful attorney-in-fact and agent, each with full power of substitution or instrument entered into or delivered in connection resubstitution, to act solely and exclusively on behalf of such Company Indemnifying Party with the Merger and respect to the transactions contemplated by this 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, but not limited to, 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) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree act for such Company Indemnifying Party with regard to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreementmatters pertaining to litigation;
(iii) give to execute and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed deliver all documents in connection herewith, for and on behalf of any Participating Equity Holder, to with the transactions contemplated hereby or from Parent Group (on behalf of itself amendments thereto that the Shareholders’ Representative deems necessary or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually)appropriate;
(iv) to use reasonable efforts to enforce receive funds, make payments of funds, and protect the rights and interests give receipts for funds on behalf of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing ProceedingsCompany Indemnifying Party;
(v) object to receive funds for the payment of expenses of such claims pursuant to Section 9.2 Company Indemnifying Party and Section 9.3apply such funds in payment for such expenses;
(vi) pay to cause the cost and expense distribution of any unused portion of the Participating Expense Fund Amount to the Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to in accordance with the terms of this Agreement;
(vii) consent to do or agree to, negotiate, enter into, prosecute refrain from doing any further act or defend, settlements deed on behalf of such Company Indemnifying Party that the Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and compromises of, and demand arbitration and comply with Orders completely as such Company Indemnifying Party could do if personally present; and
(viii) to receive service of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions process in connection with any claims under this Agreement.
(b) The Shareholders’ Representative may resign at any time by providing Buyer a minimum of twenty (20) days’ advance written notice and a successor Shareholders’ Representative, reasonably acceptable to Buyer, shall be appointed by a majority in interest of the resolution Equity Holders. The appointment of the Shareholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, the Merger Subs and any dispute relating hereto other Person may conclusively and absolutely rely, without inquiry, upon any action of the Shareholders’ Representative in all matters referred to herein. All notices required to be made or delivered by Buyer or the Merger Subs to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in Company after the sole discretion of Closing described above shall be made to the Shareholders’ Representative for the accomplishment benefit of such Company Indemnifying Party and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the foregoing and Merger Subs as applicable, to such Company Indemnifying Party with respect thereto. The Shareholders’ Representative shall act for the Company Indemnifying Parties on all of the other termsmatters set forth in this Agreement in the manner the Shareholders’ Representative reasonably believes to be in the best interest of the Company Indemnifying Parties and consistent with the obligations of the Company Indemnifying Parties under this Agreement, conditions but none of the Shareholders’ Representative, Buyer, the Merger Subs, the Surviving Corporation or 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, except that the Shareholders’ Representative shall be solely responsible for all damages arising from willful misconduct or gross negligence in 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. By virtue of approval of this Agreement by the Shareholders, the consummation of the Merger, the Equity Holders’ participation and receipt of the Merger Consideration, each Company Indemnifying Party agrees to reimburse the Shareholders’ Representative for all out-of-pocket costs and expenses incurred by the Shareholders’ Representative under this Agreement, including fees for any attorneys or other representative it may employ.
(c) The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by the Company, any Company Indemnifying Party, Buyer, the Merger Subs 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 Company Indemnifying Parties hereby agree to severally (based on each such Company Indemnifying Party’s respective Indemnification Pro-Rata Portion) indemnify and defend the Shareholders’ Representative against, and to hold the Shareholders’ Representative harmless from, any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Shareholders’ Representative Expenses”) arising out of or in connection with the Shareholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Shareholders’ Representative Expense is suffered or incurred; [***] Certain information provided, that in this document has the event that any such Shareholders’ Representative Expense is finally adjudicated to have been excluded pursuant 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 Shareholders’ Representative Expenses to Regulation S-Kthe extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Company Indemnifying Parties, Item 601(b)(10). Such excluded information is both any such Shareholders’ Representative Expenses may be recovered by the Shareholders’ Representative from (i) not material the funds in the Expense Fund and (ii) the type amounts in the Escrow Fund 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 be paid from the aforementioned sources of funds, this does not relieve the Company Indemnifying Parties from their obligation to promptly pay such Shareholders’ Representative Expenses as they are suffered or 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 Indemnifying Parties or otherwise. The Company Indemnifying Parties acknowledge and agree that the Registrant treats as private foregoing indemnities will survive the resignation or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment removal of the Shareholders’ Representative for or the accomplishment termination of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstancethis Agreement. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the The Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount will incur no liability of any fee payable kind with respect to the Shareholders’ Representative and any reasonable cost and expense incurred directly action or indirectly omission by the Shareholders’ Representative in connection with its obligations hereunder the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or relating willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution advice of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereincounsel.
(xiiie) In connection with Subject to the performance terms and conditions of its obligations hereunder and under the Paying Agent Agreement and the Escrow this Agreement, upon the Closing, Buyer shall wire to the Shareholders’ Representative the Expense Fund Amount pursuant to wire instructions provided to Buyer, which shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred be held by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-third party expenses incurred pursuant to this Agreement, the Escrow Agreement, Paying Agent Agreement or any indemnification obligations pursuant to this AgreementShareholders’ Representative letter agreement (the “Expense Fund”). The Shareholders’ Representative will hold these funds separate from its corporate funds. The Company Indemnifying Parties shall not be liable receive interest or other earnings on amounts in the Expense Fund and the Company Indemnifying Parties irrevocably transfer and assign to the Shareholders’ Representative any ownership right that the Company Indemnifying Parties may have in any interest or other earnings that may accrue on amounts in the Expense Fund. The Company Indemnifying Parties acknowledge that the Shareholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligencenegligence or willful misconduct. Contemporaneous with or as soon as practicable following the completion of the Shareholders’ Representative’s duties, willful misconduct or fraud. The the Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds deliver the balance of the Expense Fund (if any) to the Escrow Agent for its operating expenses or any other corporate purposes and will not voluntarily make these funds available further distribution to its creditors the Equity Holders in accordance with the event terms of bankruptcythe Escrow Agreement. For tax Tax purposes, the Expense Fund will shall be treated as having been received and voluntarily set aside by the Participating Equity Holders Holders, other than the Vested Option Holders, at the time of Closing. Any funds remaining in The portion of the Expense Fund shall be distributed with respect to the Participating Equity Holders promptly following Vested Company Options described in Section 2.4 of this Agreement is subject to substantial limitations or restrictions and is subject to the completion claims of the Shareholders’ RepresentativeCompany’s dutiescreditors such that such portion of the consideration is not constructively received by the holders for Tax purposes at the time of Closing and is not intended to be compensation or wages, or at subject to withholding as such, until the distribution of such earlier time as portion of the Expense Fund (if any).The parties agree that the Shareholders’ Representative may determine is not acting as a withholding agent or in its sole discretion. [***] Certain information any similar capacity in this document has been excluded pursuant connection with the Expense Fund and shall have no liability for any tax reporting with respect to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that final distribution of the Registrant treats as private or confidentialExpense Fund to the Equity Holders by the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (MeetMe, Inc.)
Shareholders’ Representative. (a) From By executing this Agreement, each Shareholder hereby irrevocably authorizes and after the Closing, appoints the Shareholders’ Representative shall be authorized to act, and be the agent as such Person’s representative and attorney-in-fact for and to act on behalf of each of the Participating Equity Holders as contemplated by such Person with respect to this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree take any and all actions and make any decisions required or permitted to such amendments or modifications thereto as be taken by the Shareholders’ RepresentativeRepresentative pursuant to this Agreement or the Escrow Agreement, including
(i) give and receive notices and communications;
(ii) authorize delivery to the Parent of Escrow Shares in its sole discretionsatisfaction of claims for indemnification made by the Parent pursuant to ARTICLE VI and ARTICLE VIII;
(iii) agree to, may deem negotiate, and enter into settlements and compromises in respect of, and comply with orders or handle any other matters described in, Section 2.16, ARTICLE VI, or ARTICLE VIII;
(iv) litigate, arbitrate, resolve, settle, or compromise any claim for indemnification pursuant to ARTICLE VI or ARTICLE VIII;
(v) execute and deliver all documents necessary or desirable; provided, however, that desirable to carry out the relative interests intent of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or and the Escrow Agreement;
(iiivi) give and receive notices permitted make all elections or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters decisions contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, Escrow Agreement to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, be made by the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this AgreementShareholders;
(vii) consent engage, employ, or agree toappoint any agents or representatives (including attorneys, negotiate, enter into, prosecute or defend, settlements and compromises ofaccountants, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or consultants) to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of assist the Shareholders’ Representative for the accomplishment of the foregoing in complying with his duties and all of the other terms, conditions of this Agreementobligations; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.and
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of the foregoing.
(b) Notices or communications to or from the Shareholders’ Representative shall constitute notice to or from each of the Shareholders. Further, in each case without having Shareholder acknowledges that such Shareholder has specifically authorized the Shareholders’ Representative to seek accept service of process, summons, complaint, subpoena, or obtain initiation of other legal action related to this Agreement on behalf of such Shareholder. The Shareholders’ Representative acknowledges that he will accept such service of process, summons, complaint, subpoena, or initiation of other legal action on behalf of each Shareholder. Any decision or action by the consent of Shareholders’ Representative hereunder, including any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on agreement between the Shareholders’ Representative and treat the Parent relating to the defense, payment, or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Shareholders and shall be final, binding, and conclusive upon each such Shareholder. No Shareholder shall have the right to object to, dissent from, protest, or otherwise contest the same. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest, and shall not be terminated by any act of any one or Shareholders, or by operation of Law, whether by death or other event.
(c) The Shareholders shall indemnify and hold harmless the Shareholders’ Representative as from and against any Losses, Liability or expense (including the duly appointed attorney-in-fact hiring of each Participating Equity Holder legal counsel and as having the duties, power incurring of legal fees and authority provided for in this Section 11.14(a);
(xicosts) withhold from any cash payment incurred without gross negligence or distribution to willful misconduct on the Participating Equity Holders on and after the date hereof, the amount part of any fee payable to the Shareholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder; provided, that in no event shall the indemnification obligation of any reasonable cost Shareholder exceed the Merger Consideration actually received by or due to such Shareholder hereunder. The Shareholders agree that any out-of-pocket costs and expense expenses incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred actions taken by the Shareholders’ Representative pursuant to the terms of this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal responsibility of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialShareholders based on their Pro Rata Shares.
Appears in 1 contract
Sources: Merger Agreement (nFusz, Inc.)
Shareholders’ Representative. (a) From Each Indemnitor, by virtue of its receipt of any Initial Per Share Payment or Initial Option Payment, as applicable, shall be deemed to have consented and after agreed to the Closingappointment, effective as of the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ as the Shareholders’ Representative shall be authorized to actfor purposes of this Agreement, and be the agent and attorneyas attorneys-in-fact for and on behalf such Indemnitor, with full power of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers substitution and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
to (i) execute, as the Shareholders’ Representative, execute any amendment or waiver of this Agreement and any agreement other document or instrument entered into necessary or delivered advisable in connection with order to carry out the Merger and the transactions contemplated by provisions of this Agreement;
, (ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreementand communications, or (iii) to dispute any other agreement or document entered into or executed in connection herewithclaim for indemnification hereunder, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration and to comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwiseLoss, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing; provided, however, that the Shareholders’ Representative 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 each case any material respect the obligations or liabilities of any Indemnitor without having to seek or obtain the prior written consent of such Indemnitor. ▇▇▇▇▇ ▇▇▇▇▇▇ hereby consents and agrees to such appointment pursuant to this Section 10.9. The Shareholders’ Representative shall be provided reasonable access to information regarding the Company and the Surviving Corporation for the purpose of performing its duties hereunder; provided, however that the Shareholders’ Representative shall treat confidentially any Person under non-public information.
(b) In all matters relating to this Article X, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Indemnified Persons. The Indemnitors shall be bound by all actions taken by the Shareholders’ Representative in his or her capacity as such, except for any circumstanceaction that conflicts with the limitations set forth in clause (d) of this Section 10.9. Parent Group is authorized to rely conclusively on any such action of the Shareholders’ Representative as being the duly authorized action of the Indemnitors and their respective Affiliates (including after no party shall have any cause of action against Parent for any action taken by Parent in reliance upon the Effective Timeinstructions, decisions or actions of the Surviving Corporation) Shareholders’ Representative. The Parent Indemnified Persons shall be entitled to rely on all statements, representations, decisions and actions of the Shareholders’ Representative.
(c) The Shareholders’ Representative shall promptly provide written notice to the Indemnitors of any action taken on their behalf by the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution pursuant to the Participating Equity Holders on and after the date hereof, the amount of any fee payable authority delegated to the Shareholders’ Representative and any reasonable cost and expense incurred directly under this Section 10.9. The Shareholders’ Representative shall at all times act in his or indirectly by her capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in connection the best interests of the Indemnitors. 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, except in the case of its gross negligence, bad faith or willful misconduct. The Shareholders’ Representative may consult with its obligations hereunder legal counsel, independent public accountants and other experts selected by him or relating her and shall not be liable for any action taken or omitted to be taken in good faith by him or her in accordance with the advice of such counsel, accountants or experts. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution performance or observance of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance terms, covenants or conditions of its obligations hereunder and under the Paying Agent Agreement and the Escrow this Agreement. As to any matters not expressly provided for in this Agreement, the Shareholders’ Representative shall have not exercise any discretion or take any action.
(d) Notwithstanding anything to the right at any time and from time to time to select and engage attorneyscontrary contained herein, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by i) the Shareholders’ Representative is not authorized to, and shall be reimbursed in accordance with not, accept on behalf of any Shareholder any consideration to which such Indemnitor is entitled under this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material Agreement and (ii) the type that Shareholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to securities of the Registrant treats as private Company now or confidentialhereafter owned of record or beneficially by any Indemnitor unless the Shareholders’ Representative is expressly authorized to do so in a writing signed by such Indemnitor.
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
Shareholders’ Representative. (a) From In order to efficiently administer (i) the waiver of any condition to the obligations of the Sellers and after the Closing, Owners to consummate the Shareholders’ Representative shall be authorized to acttransactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Sellers or the Owners may be required to indemnify the agent Purchaser Indemnified Parties pursuant to Article 8 hereof, each of the Sellers and each Owner hereby irrevocably appoints and designates ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as his, her or its representative and attorney-in-fact (the "REPRESENTATIVE").
(b) The Sellers and the Owners hereby authorize the Representative (i) to take all action necessary in connection with (aa) the waiver of any condition to the obligations of any Seller or any Owner to consummate the transactions contemplated hereby, or (bb) the defense and/or settlement of any claims for which any Seller or Owner may be required to indemnify the Purchaser Indemnified Parties pursuant to Article 8 hereof, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of each the Sellers and the Owners by the terms of this Agreement.
(c) In the event that the Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, a majority of the Participating Equity Holders as contemplated by this Agreement Owners will select another representative to fill each such vacancy and otherwise bind such substituted representative will be irrevocably appointed and designated the Representative for all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all .
(d) All decisions and actions taken and documents executed by the Shareholders’ Representative, including, without limitation, (i) any agreement between the Representative and Parent Group and other the Purchaser or ▇▇▇▇▇▇▇ relating to the waiver of any condition to the obligations of any Seller or Owner to consummate the transaction contemplated hereby, or (ii) the defense or settlement of any claims for which the Sellers or the Owners may be required to indemnify the Purchaser Indemnified Parties shall pursuant to Article 8 hereof, will be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of binding upon each of the Participating Equity Holders in connection with the activities to be performed on behalf Sellers and all of the Participating Equity Holders under Owners, and no Seller or Owner will have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, each of the Paying Agent Agreement Sellers and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders toOwners agree that:
(i) executethe Purchaser or ▇▇▇▇▇▇▇ will be able to rely conclusively on the instructions and decisions of the Representative as to (aa) the settlement of any claims arising out of Article 8 hereof, as or (bb) any other actions required to be taken by the Shareholders’ Representative hereunder, and no party hereunder will have any cause of action against the Purchaser or ▇▇▇▇▇▇▇ for any action taken by the Purchaser or ▇▇▇▇▇▇▇ in reliance upon the instructions or decisions of the Representative;
(ii) all actions, decisions and instructions of the Representative will be conclusive and binding upon each of the Sellers and all of the Owners, and no party hereto will have any cause of action against the Representative, in his capacity as a Representative, for any action taken, decision made or instruction given by the Representative under this Agreement Agreement, except for fraud or willful misconduct by the Representative;
(iii) the provisions of this Section 9.13 are independent and severable, are irrevocable and coupled with an interest and will be enforceable notwithstanding any agreement rights or instrument entered into remedies that either Seller or delivered any Owner may have in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);and
(iv) the provisions of this Section 9.13 will be binding upon the executors, heirs, legal representatives and successors of each Seller and each Owner, and any references in this Agreement to use reasonable efforts a Seller or an Owner will mean and include the successors to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement Sellers and the transactions contemplated hereby andOwners hereunder, in connection therewith, whether pursuant to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreementtestamentary disposition, the Paying Agent Agreement or the Escrow Agreement; laws of descent and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement distribution or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. (a) From By executing this Agreement, each of the Shareholders (notwithstanding any Shareholder's current or future mental or physical disability or incompetency) hereby irrevocably constitutes and after appoints ▇.▇. ▇▇▇▇▇ and his successors, acting as hereinafter provided, as his attorney-in- fact and agent in his name, place and ▇▇▇▇▇ in connection with the Closingtransactions and agreements contemplated by this Agreement with respect to matters: (i) prior to the Closing Date, the Shareholders’ Representative shall be authorized to actas specified herein, and be (ii) subsequent to the agent Closing Date (the "Shareholders' Representative"), and acknowledges that such appointment is coupled with an interest. By executing this Agreement under the heading "Shareholders' Representative," ▇.▇. ▇▇▇▇▇ hereby (i) accepts his appointment and authorization to act as Shareholders' Representative as attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed agent on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and Shareholders in accordance with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialagrees to perform his obligations under, and otherwise comply with, this Section 12.10.
(viiib) consult with legal counsel, independent public accountants Each Shareholder by this Agreement fully and other experts selected completely hereby: (a) authorizes the Shareholders' Representative (i) to dispute or to refrain from disputing any claim made by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to Purchaser under this Agreement or the other Purchase Agreements, (ii) to waive negotiate and compromise any terms dispute which may arise under, and conditions to exercise or refrain from exercising remedies available under this Agreement or the other Purchase Agreements and to sign any release or other document with respect to such dispute or remedy, (iii) 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 providing rights or benefits the other Purchase Agreements (iv) waive any condition to the Participating Equity Holders Closing, and (v) to agree in accordance his discretion with the terms hereof Purchaser to amend this Agreement; and in (b) agrees to be bound by all agreements and determinations made by and documents executed and delivered by the manner provided herein;Shareholders' Representative under this Agreement or the other Purchase Agreements.
(xc) take all actions necessary or appropriate in the judgment Each of the Shareholders hereby expressly acknowledges and agrees that the Shareholders’ ' Representative for is authorized to act on his behalf, notwithstanding any dispute or disagreement between the accomplishment of the foregoingShareholders, in each case without having to seek and that Purchaser and any other person or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) entity shall be entitled to rely on the Shareholders’ Representative any and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly all actions taken by the Shareholders’ ' Representative in connection with its obligations hereunder under this Agreement or relating the other Purchase Agreements without any liability to, or obligation to inquire of, any of the Shareholders. Purchaser and any other person or entity is hereby expressly authorized to rely on the genuineness of the signatures of both members of the Shareholders' Representative, and upon receipt of any writing which reasonably appears to have been signed by Shareholders' Representative, Purchaser and any other person or entity may act upon the same without any further duty of inquiry as to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each genuineness of the Participating Equity Holders’ respective interests thereinwriting.
(xiiid) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, If ▇.▇. ▇▇▇▇▇ ceases to function in his capacity as the Shareholders’ ' Representative for any reason whatsoever, then C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have the right at to appoint a successor.
(e) The authorizations of the Shareholders' Representative shall be effective until his rights and obligations under this Agreement terminate by virtue of the termination of any time and all obligations of the Shareholders to the Purchaser under this Agreement.
(f) Shareholders who execute this Agreement shall jointly and severally indemnify the Shareholders' Representative and his successor and assigns harmless from time to time to select and engage attorneysagainst any and all claims, accountantsliabilities, investment bankerslosses, advisorsdamages, or consultants fines, penalties and obtain such other professional and expert assistance (in all cases as reasonably necessary)expenses, and maintain such records, as reasonably necessary or desirable, and incur other reasonable including out-of-pocket expenses. The expenses and legal fees and expenses that may be imposed in connection with or arising out of such advisors shall constitute expenses incurred the performance by the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to under this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of provided that the Shareholders’ Representative’s duties, ' Representative has not acted with gross negligence or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private bad faith or confidentialexhibited willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Netzee Inc)
Shareholders’ Representative. (a) From By the execution and after delivery of the Closing, Agreement by the Shareholders’ Representative shall be authorized to act, including counterparts thereof, each Shareholder irrevocably constitutes and be appoints Brad ▇▇▇▇▇▇▇ ▇▇ the true and lawful agent and attorney-in-fact for of such Shareholder ("Shareholders' Representative") with full powers of substitution to act in the name, place and stead of such Shareholder with the following powers:
(a) To receive, hold and deliver to Buyer the certificates or instruments evidencing the common stock of Company owned by Shareholders, accompanied by executed stock powers, signature guarantees, and any other documents relating thereto on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, including the power to endorse and Parent Group and other Indemnified Parties shall be entitled to rely exclusively present any such certificate or stock power or instruments on any action or decision behalf of the Shareholders’ Representative. The Person serving as ;
(b) To execute and deliver all ancillary agreements, certificates, and documents which the Shareholders’ ' Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders deems necessary or appropriate in connection with the activities to be performed on behalf consummation of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms and provisions of this Agreement;
(viic) To receive and provide instructions for all payments and other deliveries made pursuant to this Agreement and other funds payable for and on behalf of the Shareholders;
(d) To act for the Shareholders with regard to all indemnification matters referred to in this Agreement including, without limitation, the power to consent or agree to, negotiate, to settlement of claims and the power to compromise any claim on behalf of each such Shareholder;
(e) To enter into, prosecute or defend, settlements into the Escrow Agreement and compromises ofto serve as the agent of the Shareholders with respect to all matters thereunder, and demand arbitration to terminate, amend or waive any provision of the Escrow Agreement and comply with Orders of Governmental Authorities to pay any expenses reasonably incurred by the Escrow Agent or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions Shareholders' Representative in connection with the resolution of any dispute relating hereto Escrow Agreement or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holdersmatters arising thereunder;
(ixf) consent To negotiate, terminate, amend or agree to any amendment to this Agreement or to waive any terms and conditions provision of this Agreement providing rights and to incur expenses (including fees of attorneys and accountants) in any way relating to this transaction or benefits any indemnification proceedings relating thereto and deduct such expenses from amounts otherwise payable to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;Shareholders; and
(xg) take all actions To do or refrain from doing any further act or deed on behalf of the Shareholders which the Shareholders' Representative deems necessary or appropriate in their sole discretion relating to the judgment subject matter of this Agreement as fully and completely as any Shareholder could do if personally present. The appointment of the Shareholders’ ' Representative for shall be deemed coupled with an interest and shall be irrevocable and the accomplishment Buyer may conclusively and absolutely rely, without inquiry, upon any actions of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ ' Representative and treat the Shareholders’ Representative evidenced by a writing as the duly appointed attorney-in-fact act of each Participating Equity Holder and as having the duties, power and authority provided for Shareholder in all matters referred to in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement. With respect to each Shareholder who is a natural person, the authority conferred by such Shareholder shall not be revoked by such Shareholder's death or physical or mental disability. In the event Shareholders’ ' Representative refuses to serve as Shareholders' Representative or service in such capacity is terminated for any reason, a successor Shareholders' Representative may be designated by a writing executed by the Shareholders who held a majority of the common stock of Company listed on Exhibit 3.01(f) of the Disclosure Schedule. The Shareholders' Representative shall have not be responsible to the right at Shareholders for any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, loss or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses damage the Shareholders may suffer by reason of such advisors shall constitute expenses incurred by the performance of the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to his duties under this Agreement, any indemnification obligations pursuant to other than loss or damage arising from willful violation of law or gross negligence in the performance of his duties under this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligenceBUYER: INFOCURE CORPORATION By: -------------------------------------------- Name:---------------------------------- Title:--------------------------------- ADDRESS FOR NOTICE: Address: 2970 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, willful misconduct or fraudSuite 950 Atlanta, Georgia 30329 Telecopy No.: 404-▇▇▇-▇▇▇▇ Attention: Fred▇▇▇▇▇ ▇. The Shareholders’ Representative will hold these funds separate from its own funds▇▇▇e, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.Chief Executive Officer
Appears in 1 contract
Shareholders’ Representative. (a) From In order to administer efficiently the rights and after obligations of the ClosingShareholders under this Agreement, the Shareholders hereby designate and appoint ▇▇▇▇▇▇▇ as the Shareholders’ Representative shall be authorized ' Representative, to act, and be serve as the Shareholders' agent and attorney-in-fact for and on behalf of each the limited purposes set forth in this Agreement.
(b) Each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by Shareholders hereby appoints the Shareholders’ Representative' Representative as such Shareholder's agent, proxy and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision attorney-in-fact, with full power of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationsubstitution, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders for all purposes set forth in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreementincluding, for the purposes and with the powers and authority hereinafter set forth which shall includewithout limitation, the full power and authority on such Shareholder's behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to consummate the transactions contemplated by this Agreement, by arbitration(ii) to disburse any funds received hereunder to the Shareholders, settlement (iii) to execute and deliver on behalf of each Shareholder any amendment or otherwisewaiver under this Agreement, and take to agree to resolution of all Adjustments pursuant to Section 1.4 or forego any or 10, and of all actions permitted or required of any Participating Equity Holder or necessary in Claims hereunder, (iv) to retain legal counsel and other professional services, at the sole discretion expense of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance by the Shareholders' Representative of its obligations hereunder this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under the Paying Agent this Agreement and the Escrow 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 Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders’ Representative shall have Shareholders to enforce the right at rights of the Shareholders under this Agreement, and any time and from time action taken with respect to time any Adjustment or Claim (including any action taken to select and engage attorneysobject to, accountantsdefend, investment bankers, advisors, compromise or consultants and obtain agree to the payment of such other professional and expert assistance (in all cases as reasonably necessaryAdjustment or Claim), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred be effective if approved in writing by the Shareholders’ ' Representative and the holders of a majority of the Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of 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 Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be reimbursed in accordance with this Section 11.14(a)(xiii) binding and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyconclusive on every Shareholder, whether or not such Shareholder had notice of, or reimbursing the Shareholders’ Representative forapproved, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct such amendment or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund waiver.
(d) ▇▇▇▇▇▇▇ shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time serve as the Shareholders’ ' Representative may determine in its sole discretionuntil he resigns or is otherwise unable or unwilling to serve. [***] Certain information in In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to United of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) From By virtue of the adoption and after approval of this Agreement and approval of the ClosingMerger and/or acceptance of any consideration pursuant to this Agreement or by signing the Shareholder Consent or the Letter of Transmittal and receiving the benefits thereof and without any further action of any of the Shareholders or the Company, the Shareholders have constituted, appointed and empowered and hereby do appoint Fortis Advisors LLC, a Delaware limited liability company, as the Shareholders’ Representative shall be authorized to actRepresentative, for the benefit of the Shareholders, and be as the exclusive agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Escrow Agreement and the Paying Agent Agreement to act on behalf of each Shareholder effective as of the Closing, in connection with and to facilitate the Escrow Agreementconsummation of the transactions contemplated hereby, for the purposes and with the powers and authority hereinafter set forth which shall include, include the power and authority on behalf of the Participating Equity Holders to:
: (i) executeexecute this Agreement, as the Shareholders’ RepresentativeAncillary Agreements and other agreements, this Agreement documents and certificates pursuant to such agreements, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Parent of all or any agreement portion of the Escrow Fund, in satisfaction of purchase price adjustment claims, indemnification claims or instrument entered into or delivered in connection with the Merger and the transactions other claims contemplated by this Agreement or as provided in the Escrow Agreement or Paying Agent Agreement;
, (iiiii) negotiate, execute and deliver the Paying Agent Agreement such waivers, consents and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders Shareholders and to enforce and protect the rights and interests of the Participating Equity Holders such Persons arising out of or under or in any manner relating to this Agreement or the Ancillary Agreements and the transactions contemplated hereby provided for herein and therein, and to take any and all actions which the Shareholders’ Representative believes are necessary or appropriate under this Agreement or the Ancillary Agreements for and on behalf of the Shareholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Company and their respective Representatives regarding such claims, and, in connection therewith, to to: (iA) assert any claim or institute any Proceeding action, proceeding or make any indemnification claimsinvestigation; (iiB) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Shareholders, and receive process on behalf of any or all Shareholders 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 Proceeding relating to claims asserted under this Agreement, the Paying Agent Agreement or the Escrow AgreementAncillary Agreements; and (iiiE) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant action, proceeding or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree toinvestigation, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of it being understood that the Shareholders’ Representative shall not have any obligation to take any such actions, and shall not have any Liability for the accomplishment of the foregoing and all of the other terms, conditions of this Agreementany failure to take any such actions; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (iiF) use the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree Expense Fund to satisfy any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense expenses incurred directly or indirectly by the Shareholders’ Representative in connection with fulfilling its obligations hereunder from and after the Closing Date (including the fees and expenses of any Independent Auditor pursuant to Article III or Article X and any Transfer Taxes payable by the Shareholders pursuant to Article X); (v) refrain from enforcing any right of the Shareholders arising out of or under or in any manner relating to this Agreement; 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 or by the Shareholders unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; (vi) 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; (vii) engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Shareholders in connection with any matter arising under this Agreement; (viii) collect, hold and disburse the Expense Fund, in accordance with the terms of this Agreement or the Ancillary Agreements; and (ix) take or refrain from taking any or all of the foregoing actions and do or refrain from doing any further act or deed on behalf of the Shareholders relating to the transactions contemplated hereby subject matter of this Agreement, the Escrow Agreement and the Paying Agent Agreement which the Shareholders’ Representative deems necessary or appropriate in its sole discretion. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity HoldersShareholders, except as expressly provided herein, in each case to the extent Escrow Agreement, in the Paying Agent Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of each clarity, there are no obligations of the Participating Equity HoldersShareholders’ respective interests thereinRepresentative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedules.
(xiiib) In Without limiting the generality of the above, by virtue of the adoption and approval of this Agreement and approval of the Merger or by signing the Shareholder Consent or the Letter of Transmittal and receiving the benefits thereof, including the right to receive the consideration payable in connection with the performance Merger, each Shareholder grants unto the Shareholders’ Representative full power and authority to do and perform each and every act and thing as described above, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Shareholders’ Representative may lawfully do or cause to be done by virtue hereof. Each Shareholder further acknowledges and agrees that, upon execution of this Agreement, with respect to any delivery by the Shareholders’ Representative of any documents executed by the Shareholders’ Representative pursuant to this Section 11.17, such Shareholder shall be bound by such documents as fully as if such Shareholder had executed and delivered such documents. No bond shall be required of the Shareholders’ Representative. Any and all actions taken by the Shareholders’ Representative on behalf of the Shareholders shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Shareholders and each Shareholder’s successors as if expressly confirmed and ratified in writing by each such Shareholder. The Shareholders shall cooperate with the Shareholders’ Representative and any accountants, attorneys or other agents whom the Shareholders’ Representative may retain to assist in carrying out the Shareholders’ Representative duties hereunder. The Parties acknowledge that the Shareholders’ Representative obligations under this Section 11.17 are solely as a representative of the Shareholders as set forth in this Agreement.
(c) Certain Shareholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its obligations hereunder and services under this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Shareholders’ Representative Engagement Agreement (such Shareholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). The Shareholders’ Representative shall be entitled to (a) receive reimbursement from the Shareholders for all expenses and charges incurred by the Shareholders’ Representative in connection with the performance of their duties and the fulfillment of their obligations under this Agreement, and (b) be indemnified by the Shareholders. Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Shareholders’ Representative Group”) shall incur liability or responsibility whatsoever to any Shareholder by reason of any error in judgment or any act or omission performed or omitted hereunder or otherwise in connection with the acceptance or administration of the Shareholders’ Representative’s responsibilities hereunder, under the Escrow Agreement, under the Paying Agent Agreement or under the Shareholders’ Representative Engagement Agreement, excepting and only to the extent any such act or failure to act is finally judicially determined to constitute Fraud, gross negligence, bad faith or willful misconduct. Without limiting the generality of the foregoing, the Shareholders’ Representative shall be entitled to rely on the 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 Group to Liability to any Shareholder. Each Shareholder shall indemnify, defend and hold harmless, severally and not jointly, based on such Shareholder’s Pro Rata Portion, the Shareholders’ Representative Group from and against all losses, damages, liabilities, claims, obligations, fines, fees, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ and professionals’ fees and the amount of any judgment against them, of any nature whatsoever (including any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholders’ Representative hereunder , or otherwise arising out of or in connection with the acceptance or administration of the Shareholders’ Representative’s duties hereunder, under the Escrow Agreement, under the Paying Agent Agreement or under the Shareholders’ Representative Engagement Agreement (collectively, the “Shareholders’ Representative Expenses”); provided that, in the event that any such indemnified Shareholders’ Representative Expense is finally adjudicated to have been primarily caused by Fraud, gross negligence, bad faith or willful misconduct of the Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of such indemnified Shareholders’ Representative Expense attributable to such Fraud, gross negligence, bad faith or willful misconduct. Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second, from any distribution of the Escrow Amount and any other amounts otherwise distributable to the Shareholders at the time of distribution, and third, directly from the Shareholders. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Fund, prior to any time distribution to the Shareholders, any amounts to which they are entitled pursuant to the expense reimbursement and indemnification provisions of this Section 11.17(c). In the event that any amounts (individually or in the aggregate) to which the Shareholders’ Representative is entitled or is obligated to pay pursuant to the foregoing exceed the Expense Fund, upon written notice from time the Shareholders’ Representative to time the Shareholders as to select and engage attorneysthe existence of such a deficiency, accountants, investment bankers, advisors, or consultants and obtain each Shareholder shall promptly deliver to the Shareholders’ Representative full payment of such other professional and expert assistance (in all cases as reasonably necessary), and maintain Shareholder’s Pro Rata Portion of the amount of such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expensesdeficiency. The fees Shareholders acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Shareholders’ Representative shall not be required to take any action unless the Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and expenses of such advisors shall constitute expenses liabilities which may be incurred by the Shareholders’ Representative in performing such actions. The Shareholders’ Representative shall be entitled to: (i) rely upon the Allocation 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 Shareholder or other party.
(d) Notwithstanding anything to the contrary contained in this Agreement, the Shareholders’ Representative shall establish such terms and procedures for administering, investing and disbursing any amounts from the Expense Fund, as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. Without limiting the generality of the foregoing, the following shall apply: (i) the Expense Fund shall be held by the Shareholders’ Representative in a segregated client account and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, directly or reimbursing the Shareholders’ Representative for, for any third-party expenses Shareholders’ Representative Expenses incurred pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement or any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will Engagement Agreement, or as otherwise determined by the Advisory Group; (ii) the Shareholders’ Representative is not be liable providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its Fraud, gross negligence, bad faith or willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes misconduct; (iii) as between the Shareholders and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, the Shareholders’ Representative is not acting as a withholding agent or at in any similar capacity in connection with the Expense Fund and has no tax reporting or income distribution obligations; (iv) the Shareholders will not receive any interest on the Expense Fund and assign to the Shareholders’ Representative any such earlier time as interest; (v) subject to Advisory Group approval, the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant contribute funds to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material the Expense Fund from any consideration otherwise distributable to the Shareholders; and (iivi) as soon as reasonably determined by the type Shareholders’ Representative that the Registrant treats Expense Fund is no longer required to be withheld, the Shareholders’ Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent on behalf of the Shareholders (other than the holders of Vested Company Stock Options) or the Surviving Corporation (in the case of holders of Vested Company Stock Options), as private applicable, for further distribution to the Shareholders.
(e) The Shareholders’ Representative may resign at any time, and may be removed or confidential.replaced by the vote of Shareholders with a majority of the Pro Rata Portion of the Purchase Price. All of the indemnities and immunities granted to the Shareholders’ Representative Group under this Agreement shall survive the resignation or removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement, the Escrow Agreement or the P
Appears in 1 contract
Shareholders’ Representative. (a) From Each of the Shareholders hereby appoints, and after effective upon the ClosingReorganization HoldCo hereby appoints, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its true and lawful attorney-in-fact and agent (the “Shareholders’ Representative”), with full power of substitution or resubstitution, to act solely and exclusively on behalf of HoldCo and each of the Shareholders with respect to the transactions contemplated by this Agreement and to act on behalf of HoldCo and each of the Shareholders 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 (including, without limitation, the Escrow Agreement) as the Shareholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for HoldCo and each of the Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of HoldCo and each of the Shareholders;
(ii) to act for HoldCo and each of the Shareholders with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments thereto that the Shareholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of HoldCo and each of the Shareholders and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of HoldCo and each of the Shareholders that the Shareholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as HoldCo and each of the Shareholders could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement.
(b) The appointment of the Shareholders’ Representative shall be authorized to actdeemed coupled with an interest and shall be irrevocable, and be the agent Buyer and attorney-in-fact for any other Person may conclusively and on behalf of each absolutely rely, without inquiry, upon any action of the Participating Equity Holders as contemplated Shareholders’ Representative in all matters referred to herein. Any action taken by this Agreement the Shareholders’ Representative must be in writing and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall must be bound by all actions taken and documents executed signed by the Shareholders’ Representative, . All notices required to be made or delivered by Buyer to the Company and Parent Group HoldCo and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication Shareholders described above shall be given or received by each Participating Equity Holder individually);
(iv) made to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment benefit of HoldCo and each of the foregoing Shareholders and shall discharge in full all notice requirements of Buyer, as applicable, to HoldCo and each of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10)Shareholders with respect thereto. Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment By appointment of the Shareholders’ Representative for the accomplishment of the foregoingRepresentative, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group HoldCo and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, Shareholders thereby confirm all that the Shareholders’ Representative shall have do or cause to be done by virtue of his appointment as the right at any time representative of HoldCo and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenseseach of the Shareholders hereunder. The fees Shareholders’ Representative shall act for HoldCo and expenses each of such advisors shall constitute expenses incurred by the Shareholders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative believes to be in the best interest of HoldCo and shall be reimbursed in accordance each of the Shareholders and consistent with the obligations of HoldCo and each of the Shareholders under this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyAgreement, or reimbursing but the Shareholders’ Representative for, shall not be responsible to HoldCo or any third-party expenses pursuant to of the Shareholders for any damages which any of HoldCo or any of the Shareholders may suffer by the performance of such duties under this Agreement, any indemnification obligations pursuant to other than damages arising from willful violation of applicable Law or gross negligence in the performance of such duties under 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 or liabilities shall be read into this Agreement or shall otherwise exist against the Shareholders’ Representative.
(c) If at any time there is no Shareholders’ Representative, the Shareholders will not appoint a Shareholders’ Representative within 15 calendar days. If the Shareholders fail to so appoint a Shareholders’ Representative, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ will be liable for the replacement Shareholders’ Representative. The Shareholders may appoint a replacement Shareholders’ Representative at any loss time by delivery to Buyer of principal a writing executed by each of the Expense Fund Principal Shareholders. If at any time there is no Shareholders’ Representative, notice to CHWWA will be deemed adequate notice as if it had duly been given to a Shareholders’ Representative.
(d) The Shareholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by HoldCo and each of the Shareholders, Buyer or any other than as a result evidence deemed by the Shareholders’ Representative to be reliable, and the Shareholders’ Representative shall be entitled to act on the advice of its gross negligence, willful misconduct or fraudcounsel selected by it. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed fully justified in failing or refusing to the Participating Equity Holders promptly following the completion take any action under this Agreement unless he shall have received such advice or concurrence of HoldCo and each of the Shareholders’ Representative’s duties, Shareholders as he deems appropriate or at such earlier time as he shall have been expressly indemnified to his satisfaction by HoldCo and each of the Shareholders against any and all Liability and expense that the Shareholders’ Representative may determine incur by reason of taking or continuing to take any such action. The Shareholders’ Representative shall in its sole discretion. [***] Certain information all cases be fully protected in acting, or refraining from acting, under this document has been excluded Agreement in accordance with a request of HoldCo and each of the Shareholders, and such request, and any action taken or failure to act pursuant to Regulation S-Kthereto, Item 601(b)(10). Such excluded information is both (i) not material shall be binding upon HoldCo and (ii) each of the type that the Registrant treats as private or confidentialShareholders.
Appears in 1 contract
Sources: Reorganization Agreement (Westwood Holdings Group Inc)
Shareholders’ Representative. (a) From Each Seller has constituted, appointed and empowered effective from and after the Closingdate of such consent, the Person designated as such by the Board as the Shareholders’ Representative shall be authorized to actRepresentative, for the benefit of the Sellers and be the exclusive agent and attorney-in-fact for and to act on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ RepresentativeSeller, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with and to facilitate the activities to be performed on behalf consummation of the Participating Equity Holders under this Agreementtransactions contemplated hereby, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, include the power and authority on behalf of the Participating Equity Holders to:
: (i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders Sellers and to enforce and protect the rights and interests of the Participating Equity Holders such Persons arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby provided for herein, 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 Sellers including, consenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and their respective Representatives regarding such claims, and, in connection therewith, to (iA) assert any claim or institute any Proceeding or make any indemnification claimsAction; (iiB) investigate, defend, contest or litigate any Third Party Claim pursuant to Section 9.5 or any other Action or investigation initiated by Buyer and, after the Closing Date, the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive process on behalf of any or all Sellers in any such Action 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 Third Party Claim or other Action 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 Proceeding relating to claims asserted under this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iiiE) file and prosecute appeals from any decision, judgment or award rendered in any such Action 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; (ii) to refrain from enforcing any right of the foregoing Proceedings;
(v) object Sellers arising out of or under or in any manner relating to this Agreement; provided, however, that no such claims pursuant failure to Section 9.2 and Section 9.3;
(vi) pay act on the cost and expense part of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of Shareholders’ Representative, except as otherwise provided in this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders shall be deemed a waiver of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claimsright 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; (iii) 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 actions and all action that the Shareholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the resolution of any dispute relating hereto or to carry out the transactions contemplated by this Agreement; (iv) to engage special counsel, by arbitrationaccountants and other advisors and incur such other expenses on behalf of the Sellers in connection with any matter arising under this Agreement, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of which such expenses the Shareholders’ Representative is authorized to pay from the Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or amendments of this Agreement or the Escrow Agreement.
(b) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Sellers for the accomplishment certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the foregoing and all of powers conferred upon the other termsShareholders’ Representative hereunder, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material the Shareholders’ Representative shall incur no responsibility whatsoever to any Sellers 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 (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative advice of counsel, public accountants or other independent experts experienced in the matter at issue, and treat any error in judgment or other act or omission of the Shareholders’ Representative as pursuant to such advice shall in no event subject the duly appointed attorney-in-fact of each Participating Equity Holder Shareholders’ Representative to liability to any Sellers. Each Seller shall indemnify, severally and as having not jointly, based on such Seller’s Payout Percentage, the dutiesShareholders’ Representative against all losses, power damages, liabilities, claims, obligations, costs and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on expenses, including reasonable attorneys’, accountants’ and after the date hereof, other experts’ fees and the amount of any fee payable judgment against them, of any nature whatsoever (including, 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 Action, investigation, challenge, or in connection with any appeal thereof, relating to the acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Action 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 the Sellers as to the existence of a deficiency toward the payment of any such indemnification amount, each Seller shall promptly deliver to the Shareholders’ Representative full payment of his, her or its Payout Percentage of the amount of such deficiency.
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement.
(d) Buyer and, after the Closing Date, the Company shall have the right to rely 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 Sellers.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Seller and (ii) shall survive the consummation of the Transactions, and any reasonable cost action taken by the Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and expense incurred directly absolutely binding on each Seller notwithstanding any contrary action of or indirectly direction from such Seller, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(f) Each of the Company and Buyer acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company and Buyer acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a Seller, the Shareholders’ Representative shall have no liability to, and shall not be liable for any Losses of, any of the Company or Buyer in connection with any obligations of the Shareholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses shall be proven to be the direct result of willful misconduct by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialhereunder.
Appears in 1 contract
Shareholders’ Representative. (a) From and after 2.11.1. By signing a Written Consent or voting in favor of or consenting to the ClosingMerger, the Shareholders’ Representative shall approval of the principal terms of the Merger, the consummation of the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, or by surrendering or delivering to the Paying Agent (i) a Certificate or an affidavit in lieu thereof (with respect to holders of Company Capital Stock) or (ii) an executed Option Cancellation Agreement (with respect to holders of Vested Company Stock Options), in each case, in exchange for the consideration to be authorized to actpaid in accordance with this Agreement, each Company Holder irrevocably approves the appointment of, and be hereby irrevocably appoints Shareholder Representative Services LLC as the agent 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 and the agreements ancillary hereto, including for and purposes of taking any action or omitting to take any action on behalf of each Company Holders hereunder to:
(a) act for Company Holders with regard to all matters pertaining to indemnification under this Agreement, including the power to defend, compromise, or settle any claims and to otherwise prosecute or pursue any litigation claims, and the payment or non-payment of any of the Participating Equity Holders as contemplated by this Agreement Indemnification Escrow Amount;
(b) execute and otherwise bind deliver all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken amendments, waivers, ancillary agreements, certificates and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as that the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders deems necessary or appropriate in connection with the activities to be performed on behalf consummation of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(iic) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments do or modifications thereto as refrain from doing any further act or deed on behalf of Company Holders that the Shareholders’ Representative, Representative deems necessary or appropriate in its sole discretion, may deem necessary or desirable; provided, however, that discretion relating to the relative interests subject matter of the Participating Equity this Agreement as fully and completely as Company Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreementcould do if personally present;
(iiid) give and or receive notices permitted to be given or required received by Company Holders under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Company Holder individually);
(ive) to use reasonable efforts to enforce and protect the rights and interests receive service of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, process in connection therewith, to (i) assert or institute with any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of under this Agreement;
(viif) consent give any written direction to the Paying Agent or the Escrow Agent;
(g) agree to, negotiate and/or comply with the determination of the Working Capital and the adjustment pursuant to Section 2.13; and
(h) agree to, negotiate, enter into, prosecute or defend, into settlements and compromises ofand/or comply with awards and court orders with respect to claims for indemnification; and All actions, notices, communications and determinations by or on behalf of 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 demand arbitration shall be binding upon, any of and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwiseall Company Holders, and take no Company Holder shall have the right to object, dissent, protest or forego any or all otherwise contest the same. All decisions and actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment on behalf of the foregoing and all of the other terms, conditions Company Holders shall be deemed to be facts ascertainable outside of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely 2.11.2. The Shareholders’ Representative may resign at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of time. If the Shareholders’ Representative for the accomplishment becomes unable to perform its responsibilities hereunder or resigns, then holders of a majority of the foregoingCompany Capital Stock, based on their Pro Rata Percentage, promptly shall designate in each case without having writing to seek Buyer a single individual to fill the Shareholders’ Representative vacancy as the successor Shareholders’ Representative hereunder. If at any time there shall not be a Shareholders’ Representative or obtain Company Holders fail to designate a successor Shareholders’ Representative, then Buyer may have a court of competent jurisdiction appoint a Shareholders’ Representative hereunder. Holders of a majority of the consent Company Capital Stock, based on their Pro Rata Percentage, may also replace the Person serving as the Shareholders’ Representative from time to time and for any reason upon at least ten days’ prior written notice to Buyer. The Shareholders’ Representative may be removed only upon delivery of any Person under any circumstance. Parent Group and their respective Affiliates (including after written notice to the Buyer signed by Persons who, as of immediately prior to the Effective Time, held a majority (by voting power) of the Surviving Corporation) then outstanding shares of Company Capital Stock.
2.11.3. The Shareholders’ Representative shall be entitled to rely act for Company Holders on all of the matters set forth in this Agreement in the manner the Shareholders’ Representative and treat believes to be in the best interest of Company Holders. The Shareholders’ Representative is authorized to act on behalf of Company Holders notwithstanding any dispute or disagreement among Company Holders. In taking any actions as Shareholders’ Representative, the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the dutiesmay rely conclusively, power and authority provided for in this Section 11.14(a);
(xi) withhold from without any cash payment further inquiry or distribution to the Participating Equity Holders on and after the date hereofinvestigation, the amount of upon any fee payable to certification or confirmation, oral or written, given by any Person the Shareholders’ Representative and reasonably believes to be authorized thereunto. The Shareholders’ Representative will incur no liability of any reasonable cost and expense incurred directly kind with respect to any action or indirectly omission by the Shareholders’ Representative in connection with its obligations hereunder the Shareholders’ Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Shareholders’ Representative’s gross negligence or relating willful misconduct. The Shareholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the 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 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; provided, further, that in no event shall a Company Holder be liable under this Agreement or otherwise in connection with the transactions contemplated hereby or in connection therewith for any Representative Losses in excess of the Merger Consideration and Option Merger Consideration actually paid, or that becomes due and payable in accordance with Section 2.14, to him, her or it. If not paid directly to the extent Shareholders’ Representative by the Expense Company Holders, any such Representative Losses may be recovered by the Shareholders’ Representative from (i) the funds in the Shareholders’ Representative Reserve, (ii) the Adjustment Escrow Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity HoldersIndemnification Escrow Fund, in each case at such time as remaining amounts would otherwise be distributable to the extent Company Holders and (iii) any future Contingent Payments that become due and payable in accordance with Section 2.14; provided, that while this section allows the Shareholders’ Representative to be paid from the aforementioned sources of each funds, this does not relieve the Company Holders from their obligation to promptly pay such Representative Losses as they are suffered or 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 Participating Equity HoldersCompany 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 applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Shareholders’ respective interests thereinRepresentative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
(xiii) In connection with 2.11.4. The Shareholders’ Representative shall treat confidentially any Confidential Information of the Buyer or the Surviving Corporation disclosed to it pursuant to this Agreement and shall not use such Confidential Information other than in the performance of its obligations hereunder and under duties as the Paying Agent Agreement and the Escrow AgreementShareholders’ Representative. In addition, the Shareholders’ Representative shall have not disclose any Confidential Information disclosed to it pursuant to this Agreement to anyone except as required by Applicable Law; provided that (i) the right at any time and from time Shareholders’ Representative may disclose such Confidential Information to time to select and engage attorneyslegal counsel, accountants, investment bankersemployees, advisors, agents or consultants, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto no less restrictive than the obligations set forth in Section 6.10 of this Agreement, (ii) the Shareholders’ Representative (or legal counsel, employees, advisors, agents or consultants to whom Confidential Information is disclosed pursuant to clause (i) above) may disclose such Confidential Information in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) and obtain (iii) the Shareholders’ Representative may disclose to any Company Holder any such other professional Confidential Information disclosed to the Shareholders’ Representative subject to such Company Holder agreeing with Buyer in writing to restrictions on the disclosure and expert assistance use of such Confidential Information consistent with or no less stringent than the restrictions to which the Shareholders’ Representative is subject pursuant to this Section 2.11.4.
2.11.5. Buyer shall be entitled to rely on the authority of the Shareholders’ Representative as the agent, representative and attorney-in-fact of 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 signing a Written Consent or otherwise voting 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 along with an executed Letter of Transmittal (in all cases as reasonably necessarywith respect to holders of Company Capital Stock) or by delivering an executed Option Cancellation Agreement (with respect to holders of Company Stock Options), in each case, in exchange for the consideration to be paid in accordance with this Agreement, hereby ratifies and maintain such records, as reasonably necessary or desirableconfirms, and incur other reasonable out-of-pocket expenses. The fees hereby agrees to ratify and expenses of such advisors shall constitute expenses incurred confirm, any action taken by the Shareholders’ Representative in the exercise of the power-of-attorney granted to the Shareholders’ Representative pursuant to this Section 2.11, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Company Holder. The provisions of this Section 2.11 are independent and severable, are irrevocable (subject only to Section 2.11.2) and coupled with an interest and shall be reimbursed enforceable notwithstanding any rights or remedies that any Company Holder may have in accordance connection with the transactions contemplated by this Section 11.14(a)(xiii) and Section 11.14(b)Agreement.
2.11.6. The Expense Fund will At the Closing, the Paying Agent shall distribute the Shareholders’ Representative Reserve to the Shareholders’ Representative, which shall be used maintained by the Shareholders’ Representative in a segregated account for the purposes of paying directly, directly or reimbursing the Shareholders’ Representative for, for any third-third party expenses pursuant to this Agreement, any indemnification in performing the obligations pursuant to this Agreement. The and exercising the rights of the Shareholders’ Representative will not be liable for hereunder or under any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraudagreements ancillary hereto. The Shareholders’ Representative will hold these funds separate from its own corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. Company Holders shall not receive interest or other earnings on the Shareholders’ Representative Reserve and Company Holders irrevocably transfer and assign to the Shareholders’ Representative any ownership right that they may otherwise have had in any interest that may accrue on funds held in the Shareholders’ Representative Reserve. 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 Reserve other than as a result of its gross negligence or willful misconduct. For tax Tax purposes, the Expense Fund will Shareholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by the Participating Equity Company Holders at the time of Closing. Any funds The Shareholders’ Representative shall be reimbursed for out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Shareholders’ Representative Reserve; provided that if the Shareholders’ Representative Reserve is insufficient to pay such expenses, then the Shareholders’ Representative shall be reimbursed directly from Company Holders on a several basis (and not a joint and several basis) according to their Pro Rata Percentage. Upon the determination of the Shareholders’ Representative that the Shareholders’ Representative Reserve is no longer necessary in connection with claims for indemnification of the Shareholders’ Representative pursuant to this Section 2.11, the Shareholders’ Representative shall distribute to the Paying Agent for further distribution to the Company Holders (solely out of the Shareholders’ Representative Reserve) the amount remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion Shareholders’ Representative Reserve after payment of all of the Shareholders’ Representative’s duties, or at such earlier time out-of-pocket expenses incurred in connection with its services as Shareholders’ Representative. The Shareholders’ Representative Reserve shall not be available to Buyer to satisfy any claims hereunder. Any payments as may be required by the Shareholders’ Representative may determine to be made directly to it by any Company Holders pursuant to this Agreement or any other agreement shall be paid in its sole discretionaccordance with such Company Holder’s Pro Rata Percentage.
2.11.7. [***] Certain information The provisions of this Section 2.11 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Holder, and any references in this document has been excluded Agreement to a Company Holder shall mean and include the successors to the rights of each applicable Company Holder hereunder, whether pursuant to Regulation S-Ktestamentary disposition, Item 601(b)(10). Such excluded information is both (i) not material the laws of descent and (ii) the type that the Registrant treats as private distribution or confidentialotherwise.
Appears in 1 contract
Shareholders’ Representative. (a) From By approving this Agreement and after the Closingconsummation of the transactions contemplated hereby, and/or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, and without any further action of any of the Shareholders, Optionholders, or the Company, each Shareholder and Optionholder shall be deemed to have irrevocably approved the appointment and designation of, and hereby appoints and designates, Fortis Advisors LLC as its true and lawful attorney-in-fact and exclusive agent (the “Shareholders’ Representative”) with full power of substitution 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 hereby and the exercise of all rights and the performance of all obligations under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and the Shareholders’ Representative Engagement Agreement, including: (i) receiving and forwarding of notices and communications pursuant to this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) and accepting service of process; (ii) giving or agreeing to, on behalf of all the Shareholders and Optionholders, any and all consents, waivers and amendments deemed by the Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any) and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (iii) negotiating and entering into, on behalf of all the Shareholders and Optionholders, the Earn-Out Escrow Agreement, as and if required pursuant to the terms of this Agreement; and (iv) with respect to any indemnification claims and all other matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each Shareholder and Optionholder relative to any amounts to be received by the Shareholders and Optionholders under this Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement or the Earn-Out Agreement, (B) negotiating and compromising, on behalf of each Shareholder and Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement or the Earn-Out Agreement, and (C) executing, on behalf of each Shareholder and Optionholder, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Shareholder or Optionholder on the one hand and the Shareholders’ Representative on the other hand, provided that, in each case, the Shareholders’ Representative shall be authorized not take any action adverse to actany Shareholder or Optionholder unless such action is also taken proportionately with respect to the others. Notwithstanding the foregoing, and be the agent and attorney-in-fact for and Shareholders’ Representative shall have no obligation to act on behalf of each the Shareholders and Optionholders, except as expressly provided herein, in the Earn-Out Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Participating Equity Holders as contemplated Shareholders’ Representative in any other Ancillary Agreement, schedule, exhibit or the Disclosure Schedules.
(b) Each Shareholder and Optionholder hereby agrees that: (i) in all matters in which action by the Shareholders’ Representative is required or permitted, the Shareholders’ Representative is authorized to act on behalf of such Shareholder and Optionholder, notwithstanding any dispute or disagreement among the Shareholders and Optionholders, and any Indemnified Party shall be entitled to rely on any and all action taken by the Shareholders’ Representative under this Agreement, the Earn-Out Agreement and otherwise bind the Earn-Out Escrow Agreement (if any) without any liability to, or obligation to inquire of, any Shareholder or Optionholder, notwithstanding any knowledge on the part of any Indemnified Party of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Shareholders’ Representative under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or the Shareholders’ Representative Engagement Agreement shall be binding upon all of the Participating Equity Holders Shareholders and Optionholders and their successors as if expressly confirmed and ratified in writing by the Shareholders and Optionholders, and no Shareholder or Optionholder shall have the right to object to, dissent from, protest or otherwise contest any such decision, action, consent or instruction; (iii) notice to the Shareholders’ Representative, delivered in the manner provided in Section 10.1, shall be deemed to be notice to each Shareholder and Optionholder for the purposes of this Agreement; (iv) the appointment of the Shareholders’ Representative and the powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (A) are coupled with an interest and shall be irrevocable by such Shareholder or Optionholder in any manner or for any reason, (B) shall survive the death, incompetence, bankruptcy or liquidation of any Shareholder or Optionholder and shall be binding on any successor thereto, and (C) shall survive the delivery of an assignment by any Shareholder or Optionholder of the whole or any fraction of his, her, or its interest in the Earn-Out Consideration; and (v) in the event that the person or entity serving as the Shareholders’ Representative resigns, dies, becomes incapacitated, files for bankruptcy protection or otherwise becomes unable to serve as a representative of the Shareholders or Optionholders, a representative appointed by a majority of Shareholders shall be the Shareholders’ Representative. The Participating Equity Holders newly-appointed Shareholders’ Representative shall notify Parent, the Paying Agent and any other appropriate Person in writing of his, her or its appointment, provide evidence that a majority of Shareholders approved such appointment and provide appropriate contact information for purposes of this Agreement, the Earn-Out Agreement and the Earn-Out Escrow Agreement (if any). Parent shall be bound entitled to rely upon, without independent investigation, the identity and validity of such newly-appointed Shareholders’ Representative as set forth in such written notice. If a successor Shareholders’ Representative is not appointed pursuant to the preceding procedure within 30 days after the Shareholders’ Representative’s resignation, death, incapacitation, filing for bankruptcy protection or other inability to serve as a representative, Parent shall appoint an independent and unaffiliated successor Shareholders’ Representative. The immunities and rights to indemnification shall survive the resignation or removal of the Shareholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Earn-Out Agreement.
(c) Each Shareholder and Optionholder hereby acknowledges and agrees that no Indemnified Party shall have any Liability to any Shareholder or Optionholder with respect to, and Shareholders and Optionholders jointly and severally shall indemnify all Indemnified Parties against, and agree to hold the Indemnified Parties harmless from, any and all Losses incurred by all such Indemnified Parties arising out of any breach of this Section 10.14 by the Shareholders’ Representative or by any Shareholder or Optionholder, or the designation, appointment or actions of the Shareholders’ Representative pursuant to the provisions hereof, including with respect to any (i) failure by the Shareholders’ Representative to deliver funds received by the Shareholders’ Representative (on behalf of the Shareholders and Optionholders) or any other actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other (ii) reliance by the Indemnified Parties shall be entitled to rely exclusively on on, and actions taken by the Indemnified Parties in reliance on, the instructions of, notice given by or any other action taken or decision of omitted by the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be entitled to: (i) rely upon the sole Person authorized and empowered to actCertified Closing Report, on behalf of each of the Participating Equity Holders in connection with the activities (ii) rely upon any signature believed by it to be performed genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Participating Equity Holders under this Agreementapplicable Shareholder, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:Optionholder or other party.
(id) execute, as Certain Shareholders and Optionholders have entered into an engagement agreement (the “Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection Representative Engagement Agreement”) with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree provide direction to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder services under this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and the Shareholders’ Representative Engagement Agreement (such Shareholders and Optionholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Shareholders’ Representative Group”), shall be liable to any Shareholders and Optionholders for any action or relating failure to act in connection with the transactions contemplated hereby acceptance or administration of the Shareholders’ Representative’s responsibilities hereunder, under the Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Shareholders and Optionholders shall indemnify, defend and hold harmless the Expense Fund has been depleted; and
Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (xiiincluding fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Shareholders’ Representative Expenses”) enforce payment and distribution of any amounts payable to incurred without gross negligence or willful misconduct on the Participating Equity Holders, in each case to the extent of each part of the Participating Equity HoldersShareholders’ respective interests therein.
(xiii) In Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, under the Earn-Out Agreement, under the Earn-Out Escrow Agreement (if any) or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered first, from the Expense Fund, second from any distribution of the Earn-Out Consideration otherwise distributable to the Shareholders and Optionholders at the time of distribution, and third, directly from the Shareholders and Optionholders. The Shareholders and Optionholders acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its obligations hereunder and under powers, rights, duties or privileges or pursuant to this Agreement, the Paying Agent Agreement and the Escrow Earn-Out Agreement, the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Shareholders’ Representative shall have not be required to take any action unless the right at any time Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses liabilities which may be incurred by the Shareholders’ Representative and in performing such actions.
(e) Upon the Closing, Parent shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(bwire to the Shareholders’ Representative $100,000 (the “Expense Fund Amount”). The Expense Fund will Amount shall be held by the Shareholders’ Representative in a segregated client account and shall be used (i) for the purposes of paying directly, directly or reimbursing the Shareholders’ Representative for, for any third-party expenses Shareholders’ Representative Expenses incurred pursuant to this Agreement, the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) or any indemnification obligations pursuant to this Shareholders’ Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group (the “Expense Fund”). The Shareholders’ Representative will is not be liable providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence, negligence or willful misconduct or fraudmisconduct. The Shareholders’ Representative will hold these funds separate from its own funds, is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund. The Shareholders and Optionholders will not use these funds for its operating expenses or receive any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, interest on the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed assign to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s dutiesRepresentative any such interest. Subject to Advisory Group approval, or at such earlier time as the Shareholders’ Representative may determine in its sole discretioncontribute funds to the Expense Fund from any consideration otherwise distributable to the Shareholders and Optionholders. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) As soon as reasonably determined by the type Shareholders’ Representative that the Registrant treats Expense Fund is no longer required to be withheld, the Shareholders’ Representative shall distribute the remaining Expense Fund (if any) to the Paying Agent and/or Parent, as private or confidentialapplicable, for further distribution to the Shareholders and Optionholders.
Appears in 1 contract
Shareholders’ Representative. (a) From In order to administer efficiently the rights and after obligations of the ClosingShareholders under this Agreement, the Shareholders hereby designate and appoint ▇▇▇ as the Shareholders’ Representative shall be authorized ' Representative, to act, and be serve as the Shareholders' agent and attorney-in-fact for and on behalf of each the limited purposes set forth in this Agreement.
(b) Each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by Shareholders hereby appoints the Shareholders’ Representative' Representative as such Shareholder's agent, proxy and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision attorney-in-fact, with full power of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationsubstitution, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders for all purposes set forth in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreementincluding, for the purposes and with the powers and authority hereinafter set forth which shall includewithout limitation, the full power and authority on such Shareholder's behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to consummate the transactions contemplated by this Agreement, by arbitration(ii) to disburse any funds received hereunder to the Shareholders, settlement (iii) to execute and deliver on behalf of each Shareholder any amendment or otherwisewaiver under this Agreement, and take to agree to resolution of all Adjustments pursuant to Section 1.4 or forego any or 10, and of all actions permitted or required of any Participating Equity Holder or necessary in Claims hereunder, (iv) to retain legal counsel and other professional services, at the sole discretion expense of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance by the Shareholders' Representative of its obligations hereunder this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under the Paying Agent this Agreement and the Escrow 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 Shareholder.
(c) Each of the Shareholders hereby agrees that any amendment or waiver under this Agreement, and any action taken on behalf of the Shareholders’ Representative shall have Shareholders to enforce the right at rights of the Shareholders under this Agreement, and any time and from time action taken with respect to time any Adjustment or Claim (including any action taken to select and engage attorneysobject to, accountantsdefend, investment bankers, advisors, compromise or consultants and obtain agree to the payment of such other professional and expert assistance (in all cases as reasonably necessaryAdjustment or Claim), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred be effective if approved in writing by the Shareholders’ ' Representative and the holders of a majority of the Corporation's Stock (including any Corporation's Stock held by the Shareholders' Representative), or, in the case of 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 Corporation's Stock immediately prior to the Closing, and that each and every action so taken shall be reimbursed in accordance with this Section 11.14(a)(xiii) binding and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyconclusive on every Shareholder, whether or not such Shareholder had notice of, or reimbursing the Shareholders’ Representative forapproved, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct such amendment or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund waiver.
(d) ▇▇▇ shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time serve as the Shareholders’ ' Representative may determine in its sole discretionuntil he resigns or is otherwise unable or unwilling to serve. [***] Certain information in In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporation's Stock immediately prior to the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to United of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) From Pursuant to (i) this Agreement with respect to the Key Stockholder, and (ii) the written consent of the Shareholders dated on or about the date hereof with respect to the other Shareholders, the Shareholders have or will have constituted, appointed and empowered effective from and after the Closingdate of such consent, Globe Shareholder Rep, LLC as the Shareholders’ Representative shall be authorized to actRepresentative, for the benefit of the Shareholders and be as the exclusive agent and attorney-in-fact for and to act on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders Shareholder in connection with and to facilitate the activities to be performed on behalf consummation of the Participating Equity Holders under this Agreementtransactions contemplated hereby, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, include the power and authority on behalf of the Participating Equity Holders toauthority:
(i) executeto negotiate, as execute and deliver such waivers, consents and amendments (other than (A) the Shareholders’ Representative, written consent referred to in this sentence and (B) any written consent of the Shareholders adopting this Agreement) under this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and consummation of the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto hereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iiiii) give and receive notices permitted or required under this Agreementas the Shareholders’ Representative, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders Shareholders and to enforce and protect the rights and interests of the Participating Equity Holders such Persons arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby provided for herein, 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 Shareholders including, consenting to, compromising or settling any claims, conducting negotiations with PLC, Parent, Merger Sub, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (iA) assert or defend any claim or institute any Proceeding Action, proceeding or make any indemnification claimsinvestigation; (iiB) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by PLC, Parent, Merger Sub, the Surviving Corporation or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Shareholders, and receive process on behalf of any or all Shareholders in any 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 Proceeding relating to claims asserted under this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iiiE) file and prosecute appeals from any decision, judgment or award rendered in any of such action, proceeding or investigation, it being understood that the foregoing ProceedingsShareholders’ 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;
(viii) object to refrain from enforcing any right of the Shareholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such claims pursuant failure to Section 9.2 and Section 9.3act 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 or by the Shareholders unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative;
(viiv) pay the cost to make, execute, acknowledge and expense of the Participating Equity Holders for the Independent Accountant or 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 other payment on behalf of the Participating Equity Holders pursuant and all things and to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions and all action that the Shareholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with the resolution of any dispute relating hereto or to carry out the transactions contemplated by this Agreement;
(v) to engage special counsel, by arbitrationaccountants and other advisors and incur such other expenses on behalf of the Shareholders in connection with any matter arising under this Agreement; and
(vi) to collect, settlement hold and disburse (or otherwisecause its designees to collect, hold and disburse) any part of the Initial Purchase Price, the Final Purchase Price, the Purchase Price Adjustment Escrow Amount and the Expense Holdback Amount in accordance with the terms of this Agreement.
(b) The Shareholders’ Representative shall be entitled to receive reimbursement from, and take be indemnified by, the Shareholders for certain expenses, charges and Liabilities as provided below. In connection with this Agreement, and in exercising or forego failing to exercise all or any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of powers conferred upon the Shareholders’ Representative for the accomplishment of the foregoing and all of the other termshereunder, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material the Shareholders’ Representative shall incur no responsibility whatsoever to any Shareholder by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative advice of counsel, public accountants or other independent experts experienced in the matter at issue, and treat any error in judgment or other act or omission of the Shareholders’ Representative as pursuant to such advice shall in no event subject the duly appointed attorney-in-fact of each Participating Equity Holder Shareholders’ Representative to Liability to any Shareholder. Each Shareholder shall indemnify, severally and as having not jointly, based on such Shareholder’s Pro Rata Portion, the dutiesShareholders’ Representative against all losses, power damages, Liabilities, claims, obligations, costs and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on expenses, including reasonable attorneys’, accountants’ and after the date hereof, other experts’ fees and the amount of any fee payable 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 acts or omissions of the Shareholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Shareholders’ Representative hereunder for its willful misconduct. The Shareholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Shareholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 9.16. In the event of any indemnification hereunder, upon written notice from the Shareholders’ Representative to the Shareholders as to the existence of a deficiency toward the payment of any such indemnification amount, each Shareholder shall promptly deliver to the Shareholders’ Representative full payment of its Pro Rata Portion of the amount of such deficiency. The Shareholders’ Representative shall be entitled to refuse to take or to continue to take any action hereunder unless it shall first be fully indemnified to its reasonable satisfaction by the Shareholders (based on their respective Pro Rata Portions) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Shareholders’ Representative shall establish such terms and procedures for administering, investing and disbursing any amounts from the Expense Holdback Amount as it may determine in its reasonable judgment to be necessary, advisable or desirable to give effect to the provisions of this Agreement. If any balance of the Expense Holdback Amount remains undisbursed at such time as all disputes, claims and other matters relating to the transactions contemplated by this Agreement and all other instruments and agreements to be delivered pursuant hereto have been finally resolved, then the Shareholders’ Representative shall distribute to each Shareholder, by wire transfer of immediately available funds to an account designated by each Shareholder, such Shareholder’s Pro Rata Portion of such remaining balance of the Expense Holdback Amount (“Expense Holdback Distribution Amount”).
(c) All of the indemnities, immunities and powers granted to the Shareholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) Parent and the Surviving Corporation shall have the right to rely 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 Shareholders.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Shareholder and (ii) shall survive the consummation of the Merger, and any reasonable cost action taken by the Shareholders’ Representative pursuant to the authority granted in this Agreement shall be effective and expense incurred directly absolutely binding on each Shareholder notwithstanding any contrary action of or indirectly direction from such Shareholder, except for actions or omissions of the Shareholders’ Representative constituting willful misconduct.
(f) Each of the Company, PLC, Parent and Merger Sub acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that the Shareholders’ Representative shall have no Liability to, and shall not be liable for any losses of, any of the Company, Merger Sub or Parent in connection with any obligations of the Shareholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such losses shall be proven to be the direct result of willful misconduct by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialhereunder.
Appears in 1 contract
Sources: Merger Agreement (Endava PLC)
Shareholders’ Representative. (a) From By virtue of the Company Shareholder Approval, and after without any further act of any holder of Company Common Stock, the Closing, holders of Company Common Stock will be deemed to have appointed ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (previously defined as the Shareholders’ Representative shall be authorized to act, and be the Representative) as agent and attorney-in-fact for and on behalf each holder of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind Company Common Stock for all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) matters relating to this Agreement, including to give and receive notices and communications; to authorize delivery of cash from the Merger and any other matters contemplated Holdback Amount in satisfaction of claims by this Agreement Parent or by such other agreement or instrument (except Surviving Corporation; to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant deliveries, to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders orders of Governmental Authorities or courts and awards of arbitrators with respect to, to such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or ; and to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiiib) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss act done or omitted hereunder as the Shareholders’ Representative while acting in good faith. Holders of principal of Company Common Stock on whose behalf the Expense Fund other than as a result of its gross negligenceHoldback Amount is withheld will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or fraudin connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. The Shareholders’ Representative will hold these funds separate from its own fundsbe entitled to the advance and reimbursement of costs and expenses incurred by or on behalf of the Shareholders’ Representative in the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(c) A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will not use these funds for its operating expenses constitute a decision of the holders of Company Common Stock and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under this Agreement or any other corporate purposes document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of the holders of Company Common Stock. Parent and will not voluntarily make these funds available all other Indemnified Persons are hereby relieved from any liability to its creditors any person for any acts done by them in the event of bankruptcy. For tax purposesaccordance with such decision, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion act, consent, or instruction of the Shareholders’ Representative’s duties. IN WITNESS WHEREOF, or at such earlier time as Parent, Sub, Company, Shareholders, and the Shareholders’ Representative may determine in its sole discretionhave signed or caused their respective duly authorized officers to sign this Agreement, all as of the date first written above. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10)By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its CEO DL SUB CORPORATION By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Its President POSITIVE ACCESS CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. Such excluded information is both (i) not material and (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Its CEO /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Shareholder /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ as Shareholder SHAREHOLDERS’ REPRESENTATIVE /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
ARTICLE I THE MERGER
1.1 Effective Time of the type that Merger 1 1.2 Closing 1 1.3 Effects of the Registrant treats as private or confidential.Merger 1
Appears in 1 contract
Shareholders’ Representative. (a) From In order to administer efficiently the registration of the Parent Stock pursuant to the Registration Agreement and after the Closingdefense and/or settlement of any Parent Claims for which members of the Parent Group may be entitled to indemnification pursuant to Article 8 hereof, each Shareholder at the Effective Time, by virtue of the Merger and his receipt of any Merger Consideration and without any further act of such Shareholder, and each Executive by executing and delivering the Transaction Bonus Agreements and in accordance with the terms thereof and without any further act of such Executive, hereby irrevocably appoint the Shareholders’ ' Representative shall be authorized to act, and be the as their agent and attorney-in-fact for and on behalf purposes of each of Article 8, the Participating Equity Holders as contemplated by this Escrow Agreement and otherwise bind all of the Participating Equity Holders for Registration Agreement , and the purposes of this Shareholders' Representative hereby accepts such appointment.
(b) The Shareholders and the Executives hereby authorize the Shareholders' Representative (i) to take any action permitted or required to be taken by any Shareholder pursuant to the Registration Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed ; (ii) consent to the taking by the Shareholders’ Representative' Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement (including, and without limitation, the exercise of the power to authorize delivery to the Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized Escrow Shares and empowered to act, on behalf of each Escrow Cash out of the Participating Equity Holders Escrow Fund in satisfaction of claims by the Parent Group); (iii) to take all action necessary in connection with the activities defense and/or settlement of any Parent Claims for which the Shareholders may be required to indemnify members of the Parent Group pursuant to Article 8 hereof (but only with respect to Parent Claims payable solely out of the Escrow Fund); and (iv) during the time that property remains in the Escrow Fund, to give and receive all notices required to be performed on behalf of the Participating Equity Holders given under this Agreement, the Paying Agent Escrow Agreement and the Escrow Registration Agreement.
(c) In the event that the Shareholder's Representative dies, is unable or becomes unable to perform his responsibilities hereunder or resigns from such position, the remaining Shareholders shall, by election of the Shareholders (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the shares of Common Stock issued and outstanding immediately prior to the Effective Time, 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.
(d) All decisions and actions by the Shareholders' Representative, including actions under the Registration Agreement, the Escrow Agreement and the defense or settlement of any Parent Claims for which the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf Shareholders may be required to indemnify members of the Participating Equity Holders toParent Group pursuant to Article 8 hereof (but only with respect to Parent Claims payable solely out of the Escrow Fund), shall be binding upon all of the Shareholders, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) Each Shareholder, by virtue of the Merger and his receipt of any Merger Consideration, and each Executive, by executing and delivering the Transaction Bonus Agreements, shall be deemed to have agreed, that:
(i) execute, as Parent shall be able to rely conclusively on the instructions and decisions of the Shareholders’ ' Representative relating to the registration of the Parent Stock or to the settlement of any Parent Claims for indemnification by members of the Parent Group pursuant to Article 8 hereof and the Escrow Agreement or any other actions permitted or required to be taken by the Shareholders' Representative hereunder, and no party hereunder shall have any cause of action against any member of the Parent Group for any action taken by any member of the Parent Group 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 and the Executives and no Shareholder or Executive shall have any cause of action against the Shareholders' Representative for any action taken or not taken, decision made or instruction given by the Shareholders' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement or the Escrow Agreement by the Shareholders' Representative;
(iii) the provisions of this Section 2.8 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any agreement rights or instrument entered into remedies that any Shareholder or delivered Executive may have in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);and
(iv) to use reasonable efforts to enforce the provisions of this Section 2.8 shall be binding upon the heirs, legal representatives, successors and protect the rights assigns of each Shareholder and interests of the Participating Equity Holders Executive, and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or any references in any manner relating to this Agreement to a Shareholder or the Shareholders shall mean and include the transactions contemplated hereby andsuccessors to the Shareholders' rights hereunder, in connection therewith, whether pursuant to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreementtestamentary disposition, the Paying Agent Agreement or the Escrow Agreement; laws of descent and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement distribution or otherwise, and take any references in this Agreement to an Executive or forego the Executives shall mean and include the successors to the Executives' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) Parent shall have no liability for any fees or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion expenses of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses' Representative. The fees and expenses of such advisors shall constitute reasonable expenses incurred by the Shareholders’ ' Representative while acting on behalf of the Shareholders under the authorization granted in this Section 2.8 shall be borne by the Shareholders pro rata and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for payable out of the purposes Escrow Fund; PROVIDED, HOWEVER, that the aggregate amount of paying directly, or reimbursing any payments to the Shareholders’ ' Representative for, any third-party expenses out of the Escrow Fund pursuant to this AgreementSection 2.8(f) shall not exceed $10,000. Parent shall be entitled, without making any indemnification obligations pursuant inquiry as to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal the validity or amount of the Expense Fund other than as a result of its gross negligencefees or expenses to be reimbursed, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own 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 rely on the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion written instructions of the Shareholders’ Representative’s duties, or at such earlier time as ' Representative regarding payments in respect of the Shareholders’ ' Representative's fees and expenses as conclusive evidence of the Shareholders' Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant right to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialreceive such amounts.
Appears in 1 contract
Sources: Merger Agreement (Mro Software Inc)
Shareholders’ Representative. Each of the Shareholders designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as its representative and attorney-in-fact for all purposes under this Agreement and the Escrow Agreement (athe "SHAREHOLDERS' REPRESENTATIVE"), including without limitation, (i) From taking all action necessary in connection with the indemnification obligations of the Shareholders under this Agreement and after the ClosingEscrow Agreement, including the Shareholders’ Representative shall defense or settlement of any claims and the making of payments with respect thereto, (ii) giving and receiving on behalf of the Shareholders all notices required to be authorized to actgiven under this Agreement and the Escrow Agreement, and be (iii) executing the agent and Escrow Agreement as attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement Shareholders, (iv) agreeing to and otherwise bind all of the Participating Equity Holders for the purposes of executing amendments to this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group (v) taking any and other Indemnified Parties shall be entitled to rely exclusively on any all additional action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities is contemplated to be performed taken by or on behalf of the Participating Equity Holders under Shareholders by the Shareholders' Representative pursuant to this Agreement, the Paying Agent Agreement and the Escrow Agreement, for . Any such action taken by the purposes Shareholders' Representative shall be valid and with the powers and authority hereinafter set forth which shall include, the power and authority binding on behalf each of the Participating Equity Holders to:
(i) execute, as Shareholders. Each of the Shareholders also appoints the Shareholders’ Representative, this Agreement ' Representative as such Shareholder's custodian and any agreement or instrument entered into or delivered attorney-in-fact to act for such Shareholder in connection with the Merger Escrow Agreement arrangements as contemplated by the terms hereof and thereof, and the transactions contemplated Shareholders' Representative hereby accepts such appointment. It is agreed by this Agreement;
(ii) execute and deliver each of the Paying Shareholders that the Buyer Common Stock to be held in custody by the Escrow Agent Agreement and under the Escrow Agreement and (the "ESCROW STOCK") will be subject to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders Buyer and the Shareholders' Representative as attorney-in-fact; that the arrangements made by such Shareholder hereunder and thereunder are irrevocable; and that the obligations of such Shareholder hereunder shall not altered in a manner not contemplated be terminated by this Agreementany acts of such Shareholder, or by operation of law, whether by the Paying Agent Agreement death or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, incapacity of such Shareholder or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment party to this Agreement or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur after the execution of this Agreement and before the Closing Date or the delivery of the Escrow Stock to waive any Buyer, the Shareholders' Representative is nevertheless authorized and directed to hold and dispose of the Escrow Stock (and to instruct the Escrow Agent to hold and dispose of the Escrow Stock) in accordance with the terms and conditions of this Agreement providing rights as if such death, incapacity or benefits other event had not occurred, regardless of whether or not the Shareholder's Representative shall have received notice of such death, incapacity or other event. The designation by the Shareholders of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as the Shareholders' Representative may not be revoked without the written consent of Buyer. All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Participating Equity Holders in accordance Shareholders under this Agreement, including the defense or settlement of any claims and the making of payments with the terms hereof and in the manner provided herein;
(x) take respect hereto, shall be binding upon all actions necessary or appropriate in the judgment of the Shareholders’ , and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholders' Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution incur no liability to the Participating Equity Holders on and after the date hereof, the amount of Shareholders with respect to any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly action taken or indirectly suffered by the Shareholders’ ' Representative in connection reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with its obligations hereunder or relating respect to the transactions contemplated hereby indemnification obligations of the Shareholders under this Agreement, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity HoldersShareholders' Representative's own willful misconduct or negligence. The Shareholders' Representative may, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and all questions arising under the Paying Agent this Agreement and or the Escrow Agreement, rely on the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)advice of counsel, and maintain such recordsfor anything done, as reasonably necessary omitted or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred suffered in good faith by the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal to the Shareholders. The Shareholders acknowledge and agree that the Shareholders' Representative may incur costs and expenses on behalf of the Expense Fund other than Shareholders in his capacity as a result Shareholders' Representative ("REPRESENTATIVE Expenses"). Each of its gross negligencethe Shareholders agrees to pay the Shareholders' Representative, willful misconduct or fraud. The promptly upon demand by the Shareholders’ ' Representative will hold these funds separate from its own fundstherefor, will not use these funds for its operating expenses or such Shareholder's Proportionate Share of any other corporate purposes and will not voluntarily make these funds available Representative Expenses, provided that no Shareholder shall be required to its creditors pay, in the event of bankruptcy. For tax purposesaggregate, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining Representative Expenses in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion an amount in excess of the Shareholders’ Representative’s duties, or at Merger Consideration received by such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialShareholder.
Appears in 1 contract
Sources: Merger Agreement (Smartdisk Corp)
Shareholders’ Representative. (a) From In addition to the other rights and after the Closing, authority granted to the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by elsewhere in this Agreement and otherwise bind all of except as expressly provided herein, by participating in the Participating Equity Holders for the purposes execution and delivery of this Agreement. The Participating Equity Holders shall be bound by all actions taken Agreement and documents executed by receiving the Shareholders’ Representativebenefits thereof, and Parent Group and other Indemnified Parties shall be entitled including the right to rely exclusively on any action or decision of receive the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders consideration payable in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitrationeach Company Shareholder hereby irrevocably authorizes and appoints ▇▇▇▇▇▇▇▇ ▇▇▇ as agent, settlement attorney-in-fact and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or otherwiserelating to the transactions contemplated hereby, with full power of substitution to act in the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and take or forego any or to execute all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of such documents, as the Shareholders’ Representative for the accomplishment shall determine to be necessary or appropriate in conjunction with any of the foregoing transactions contemplated by this Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the other termsCompany Shareholders. Without limiting the generality of the foregoing, conditions the Shareholders’ Representative has full power and authority, on behalf of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-Keach Company Shareholder and such Company Shareholder’s successors and assigns, Item 601(b)(10). Such excluded information is both to: (i) not material interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counselexecute and deliver and receive deliveries of all agreements, independent public accountants certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other experts selected by it, solely at documents required or permitted to be given in connection with the cost and expense consummation of the Participating Equity Holders;
transactions contemplated by this Agreement, (ixiii) consent or receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to any amendment such claims, and to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in each case any way to the transactions contemplated hereby, (ix) deliver to Parent any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement. 75
(b) Service by the Shareholders’ Representative shall be without having compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of Parent and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or obtain instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of Parent and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder. 76
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of any Person under any circumstancethe Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and a copy of the written consent or minutes appointing such new Shareholders’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided that until such notice is received, Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and treat be entitled to use the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the dutiesFund, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereofdefined below, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyfor, or reimbursing the Shareholders’ Representative for, any third-party and all costs and expenses pursuant (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to this Agreement, any indemnification obligations pursuant to this Agreementthe Company Shareholders (in accordance with their respective Pro Rata Shares) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Shares) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Share), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be liable for any loss of principal of the Expense Fund other than subject to as a result of its gross negligencehis duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct misconduct.
(h) The Shareholders’ Representative shall have no duties or fraudresponsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative will hold these funds separate from its own funds, will shall not use these funds for its operating expenses or be liable to any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed Company Shareholder relating to the Participating Equity Holders promptly following the completion performance of the Shareholders’ Representative’s dutiesduties or exercise of any rights under this Agreement for any errors in judgment, negligence, oversight, breach of duty or at such earlier time 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-Kthis Agreement; provided, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type however, that the Registrant treats 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 convincing evidence that the actions taken or not taken by the Shareholders’ Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall 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 appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as private such, shall not be liable to Parent or confidential.any Affiliate of Parent by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the resignation or removal of Shareholders’ Representative or the termination of this Agreement. 77
Appears in 1 contract
Sources: Merger Agreement (Mountain Crest Acquisition Corp. III)
Shareholders’ Representative. (a) From Each Shareholder by executing this Agreement and after without any further action, irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇▇▇▇ as the Closing“Shareholders Representative”, the Shareholders’ Representative shall be authorized to act, such Shareholder’s true and be the agent and lawful attorney-in-fact for and on behalf exclusive agent, with full power of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representativesubstitution, and Parent Group authorizes the Shareholders Representative acting for such Shareholder and other Indemnified Parties shall in such Shareholder’s name, place and stead, in any and all capacities to do and perform every act and thing required, permitted, necessary or desirable to be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders done in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwisethe Ancillary Documents, and the transactions contemplated hereby and thereby, as fully to all intents and purposes as such Shareholder might or could do in person, including to:
(i) take or forego any or and all actions permitted (including, without limitation, executing and delivering any documents or required of amendments, incurring any Participating Equity Holder or necessary in the sole discretion costs and expenses on behalf of the Shareholders’ Representative for the accomplishment of the foregoing ) and make any and all of determinations which may be required or permitted in connection with the other terms, conditions implementation of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material the Ancillary Documents, and the transactions contemplated hereby and thereby;
(ii) give and receive notices and communications under this Agreement, the type Ancillary Documents, and the transactions contemplated hereby and thereby;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with VIH, Holdco, Merger Sub, Target Company or their respective Affiliates arising out of or in respect of this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby;
(iv) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement, the Ancillary Documents, and the transactions contemplated hereby and thereby; and
(v) to make any other decision or election or exercise such rights, power and authority as are incidental to the foregoing or that is, in the Registrant treats as private opinion of the Shareholders Representative, necessary or confidentialadvisable to effectuate the foregoing.
(viiib) consult with legal counsel, independent public accountants ▇▇▇▇▇▇ ▇▇▇▇ hereby accepts appointment and other experts selected by it, solely at authorization to act as the cost Shareholders Representative as the attorney-in-fact and expense exclusive agent on behalf of the Participating Equity Holders;Shareholders in accordance with the terms of this Agreement. From and after the VIH Merger Effective Time, Holdco, the Surviving VIH Company and its Affiliates are entitled to deal exclusively with ▇▇▇▇▇▇ ▇▇▇▇ in his capacity as Shareholders Representative on all matters relating to this Agreement and the Ancillary Documents and the transactions contemplated hereby and thereby to the extent the Shareholders Representative has authority to act on such matter pursuant to this Agreement.
(ixc) consent Each of the Shareholders acknowledges and agrees that upon execution of this Agreement, upon any delivery by the Shareholders Representative of any waiver, amendment, agreement, opinion, certificate or agree to other document executed by the Shareholders Representative, such Shareholder shall be bound by such documents as fully as if such Shareholder had executed and delivered such documents; provided that, any amendment to this Agreement materially and adversely affecting the rights of Shareholders (including amendments materially and adversely affecting (i) the percentage of Aggregate Share Consideration allocable to each Shareholder in connection with the consummation of the transactions contemplated hereunder or (ii) the economic or voting rights of Shareholders in Holdco following Closing, but other than any dilution resulting from the issuance, exercise, conversion or exchange of any Equity Interests of FinAccel) will require approval of the Shareholders holding a majority of the voting power of the outstanding Equity Interests of the Target Company.
(d) Upon the death, disability or incapacity of the initial Shareholders Representative appointed pursuant to waive any terms Section 13.18(a), each of the Shareholders acknowledges and conditions agrees then such Person as is appointed by the Shareholders who held a majority of this Agreement providing rights or benefits the voting power of the outstanding Equity Interests of the Target Company, voting as a single class, immediately prior to the Participating Closing shall be the Shareholders Representative. The Shareholders Representative may resign at any time; provided that it must provide the Shareholders who held a majority of the voting power of the Equity Holders Interests of the Target Company immediately prior to Closing thirty (30) days’ prior written notice of such decision to resign. The Shareholders Representative shall not receive compensation for service in such capacity. The designation of any Person as the Shareholders Representative is and shall be coupled with an interest, and, except as set forth in this Section 13.18, such designation is irrevocable and shall not be affected by the death, incapacity, illness, bankruptcy, dissolution or other inability to act of any of the Shareholders.
(e) Any and all actions taken or not taken, exercises of rights, power or authority and any decision or determination made by the Shareholders Representative in connection herewith shall be absolutely and irrevocably binding upon the Shareholders as if such Person had taken or not taken such action, exercised such rights, power or authority or made such decision or determination in its own capacity, and VIH, Holdco and Merger Sub may rely upon such action, exercise of right, power, or authority or such decision or determination of the Shareholders Representative as the action, inaction, exercise, right, power, or authority, or decision or determination of such Person, and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same. Each of VIH, Holdco and Merger Sub is hereby relieved from any liability to any Person for any acts done by the Shareholders Representative and any acts done by VIH, Holdco and Merger Sub in accordance with any decision, act, consent or instruction of the terms hereof and in the manner provided herein;Shareholders Representative.
(xf) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after On the date hereof, the amount of any fee payable each Shareholder has provided to the Shareholders’ Shareholders Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative a duly executed copy of each signature page required for such Shareholder in connection with its obligations hereunder the Ancillary Documents. Each such signature page shall be released by the Shareholders Representative at the Closing without further authorization or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent action necessary on behalf of each of the Participating Equity Holders’ respective interests thereinShareholder.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Business Combination Agreement (VPC Impact Acquisition Holdings II)
Shareholders’ Representative. (a) From and after Each Shareholder hereby irrevocably appoints Diamond Castle Partners IV, L.P. (the Closing, the “Shareholders’ Representative shall be authorized to actRepresentative”) as such Shareholder’s representative, and be the agent and attorney-in-fact for and agent, with full power of substitution, and to act on behalf of each such Shareholder in any amendment of or litigation or arbitration involving this Agreement and the Escrow Agreement and to do or refrain from doing all such further acts and things, and to execute and deliver all such documents, as such Shareholders’ Representative shall deem necessary or appropriate in conjunction with any of the Participating Equity Holders as transactions contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ RepresentativeEscrow Agreement including, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationwithout limitation, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders topower:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement to take all action necessary or instrument entered into or delivered desirable in connection with the Merger and waiver of any condition to the obligations of the Shareholders to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, execute and deliver the Paying Agent Agreement and (A) the Escrow Agreement and to agree to (with all such amendments modifications or modifications changes thereto as to which the Shareholders’ Representative, in its sole discretion, may deem necessary shall have consented), and (B) all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or desirable; provided, however, that permitted to given in connection with the relative interests consummation of the Participating Equity Holders are not altered in a manner not transactions contemplated by this Agreement, the Paying Agent Agreement or and the Escrow AgreementAgreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders’ Representative agrees to execute);
(iii) give to collect and receive notices permitted any amounts due or required paid for the benefit of such Shareholder under this Agreement, or any other agreement or document entered into or executed Agreement and to disburse such amounts to such Shareholder in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually)accordance with its respective Escrow Percentage;
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders such Shareholder arising out of or under or in any manner relating to this Agreement and the Escrow Agreement, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions contemplated hereby andprovided for herein or therein (including without limitation, in connection therewith, with any and all claims for indemnification brought by any indemnifying party under Article IX hereof);
(v) to (i) assert or institute enforce payment of amounts due to such Shareholder from the Escrow Funds and any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating other amounts payable to such Shareholder under this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered , in any each case, on behalf of such Shareholder to the extent of such Shareholder’s Escrow Percentage, in the name of the foregoing Proceedings;
(v) object to Shareholders’ Representative or, if the Shareholders’ Representative so elects, in the names of such claims pursuant to Section 9.2 and Section 9.3Shareholder;
(vi) pay the cost and expense to cause to be paid out of the Participating Equity Holders for Escrow Fund the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the full amount of any fee Losses arising out of the indemnification provisions set forth in Article IX hereof, or any amounts payable by such Shareholder to the Shareholders’ Representative and an indemnified party in respect of any reasonable cost and expense incurred directly compromise or indirectly settlement of any claim for indemnification under such Article IX agreed to by the Shareholders’ Representative in its sole discretion;
(vii) to refrain from enforcing any right of such Shareholder arising out of or under or in any manner relating to this Agreement or the Escrow Agreement;
(viii) to utilize the funds comprising the Escrow Amount to make any payment which is required pursuant to this Agreement or the Escrow Agreement;
(ix) to terminate this Agreement if the Shareholders are entitled to do so;
(x) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depletedany claims under this Agreement, including service of process in connection with arbitration; and
(xiixi) enforce payment to take all actions which under this Agreement may be taken by the Shareholders and distribution of to do or refrain from doing any amounts payable to the Participating Equity Holders, in each case to the extent of each further act or deed on behalf of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, Shareholders which the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably deems necessary or desirable, appropriate in his sole discretion relating to the subject matter of this Agreement as fully and incur other reasonable out-of-pocket expenses. The fees and expenses of completely as such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiiiShareholder could do if personally present.
(b) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than act taken or omitted by it as a result of its gross negligencepermitted under this Agreement, willful misconduct except if such act is taken or fraudomitted in bad faith or by intentional misconduct. The Shareholders’ Representative will hold these funds separate from also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) The Shareholders’ Representative shall not be paid any fee for services to be rendered hereunder. All reasonable fees and expenses incurred by the Shareholders’ Representative in performing its own funds, will duties hereunder or under the Escrow Agreement (including any fees and expenses of legal counsel retained by such Representative) shall be borne by the Securityholders (severally as to each Securityholder only and not use these funds for its operating expenses jointly as to or with any other corporate purposes and will not voluntarily make these funds available Securityholder) according to its creditors in their respective Escrow Percentages; provided, that, to the event of bankruptcy. For tax purposesextent practical, the Shareholders’ Representative shall cause Parent or the Escrow Agent, as applicable, to deduct such fees and expenses from the amounts otherwise distributable to the Securityholders. In particular and without limitation, the Shareholders acknowledge that the sum of $250,000 is being deposited by Parent into an account designated by the Shareholders’ Representative in accordance with Section 2.8(b) hereof (the “Shareholders’ Representative Expense Fund Amount”), to be used for anticipated administrative expenses. At such time that the Shareholders’ Representative believes, in its sole and absolute discretion, that no additional administrative expenses will be treated as having been received and voluntarily set aside by incurred, the Participating Equity Holders at Shareholders’ Representative shall distribute any remaining funds from the time of Closing. Any funds remaining in the Shareholders’ Representative Expense Fund shall be distributed Amount to the Participating Equity Holders promptly following Securityholders, according to their respective Escrow Percentages. If the completion expenses of the Shareholders’ Representative’s duties, or at such earlier time as Representative exceed the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-KExpense Amount, Item 601(b)(10). Such excluded information is both (i) such expenses shall be borne by the Securityholders (severally as to each Securityholder only and not material jointly as to or with any other Securityholder) according to their respective Escrow Percentages immediately prior to the Effective Time and (ii) each of the type that Shareholders hereby authorizes the Registrant treats as private or confidentialShareholders’ Representative to apply proceeds otherwise distributable to such Shareholder pursuant to the Escrow Agreement to satisfy any of such Shareholder’s obligations under this Section 10.2.
Appears in 1 contract
Shareholders’ Representative. (a) From 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, (ii) the defense and/or settlement of any claims that may be made by Purchaser following the Closing against the Escrow Fund (as defined in Section 8.2(a) below), and after (iii) the Closingpreparation of all documentation and conduct of all matters relating to the Tax Returns (as defined in Section 4.13 below) and computations of the Company and the Subsidiary pursuant to the provisions of Section 6.11 below, the Shareholders hereby designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as their representative (the "Shareholders’ ' Representative").
(b) Each Shareholder irrevocably agrees that such Shareholder grants the Shareholders' Representative shall be authorized full power and authority to act, and be the act as agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewithShareholder, for and on behalf of the Shareholders, (i) to take all action necessary in connection with the waiver of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except condition to the extent obligations of the Shareholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall may be made by Purchaser following the Closing against the Escrow Fund, (ii) to give and receive all notices required to be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or Shareholders under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and , (iii) file and prosecute appeals to authorize delivery to Purchaser of shares of Purchaser Common from any judgment rendered the Escrow Fund in any satisfaction of the foregoing Proceedings;
(v) claims by Purchaser, to object to such claims pursuant deliveries, to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant agree to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders orders of Governmental Authorities or courts and awards of arbitrators with respect to, to such claims, resolve any such claims, and (iv) to take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions additional action necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of the foregoingforegoing 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 may be changed by the Shareholders from time to time upon not less than 30 days' prior written notice to Purchaser; provided that the Shareholders' Representative may not be removed unless holders of at least two-thirds in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. In the event that the Shareholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Shareholders holding, prior to Closing, a majority in each case interest of the Escrow Fund 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. No bond shall be required of the Shareholders' Representative, and 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 having any liability to seek or obtain the consent 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 Person claims that may be made by Purchaser following the Closing against the Escrow Fund, shall be binding upon all of the Shareholders and no Shareholder shall have the right to 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 and/or the Company 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;
(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 shall constitute notice to or from each of the Shareholders for 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 circumstance. Parent Group rights or remedies that any Shareholder may have in connection with the transactions contemplated by this Agreement;
(v) remedies available at law for any breach of the provisions of this Section 1.7 are inadequate; therefore, Purchaser and their respective Affiliates (including after the Effective Time, the Surviving Corporation) Company shall be entitled to rely temporary and permanent injunctive relief without the necessity of proving damages if either Purchaser or the Company brings an action to enforce the provisions of this Section 1.7.
(vi) as between such Shareholder and the other Shareholders, the Shareholders' Representative 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’ Representative Shareholders and treat the Shareholders’ ' Representative as may act on the duly appointed opinion or advice of or information obtained from any solicitor, attorney-in-fact of each Participating Equity Holder , banker, broker, accountant or other expert and as having the duties, power and authority provided shall not be responsible for in this Section 11.14(a)any loss occasioned by so acting;
(xivii) withhold such Shareholder shall, together with all of the other Shareholders, jointly and severally indemnify the Shareholders' Representative from and against any cash payment and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or distribution to disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Participating Equity Holders on and after the date hereofShareholders' Representative by Purchaser, the amount of Company, other Shareholders, or any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative other person in connection with its obligations hereunder or relating this Agreement and in suing for and recovering any sum due to the transactions contemplated hereby to the extent the Expense Fund has been depleted; andShareholders or any of them under this Agreement;
(xiiviii) enforce payment and distribution of any amounts payable to in performing the Participating Equity Holders, functions specified in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent this Agreement and the Escrow Agreement, the Shareholders’ ' Representative shall have not be liable to any Shareholder in the right at any time and from time to time to select and engage attorneysabsence of willful misconduct on the part of the Shareholders' Representative; and
(ix) the provisions of this Section 1.7 shall be binding upon the executors, accountantsheirs, investment bankerslegal representatives, advisorspersonal representatives, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)successor trustees, and maintain such records, as reasonably necessary or desirablesuccessors of each Shareholder, and incur other reasonable out-of-pocket expenses. The 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 of such advisors shall constitute expenses incurred by the Shareholders’ ' Representative and shall be reimbursed paid out of amounts remaining in accordance with the Escrow Fund after satisfaction of all claims of Purchaser against such fund. Upon application by the Shareholders' Representative to the Escrow Agent and Purchaser prior to the satisfaction of all claims of Purchaser against the Escrow Fund, Purchaser may in its sole and absolute discretion authorize the Escrow Agent to release a portion of the Escrow Fund to the Shareholders' Representative in reimbursement of fees and expenses incurred prior to such time. In making such payment, any shares of Purchaser Common to be distributed from the Escrow Fund shall be valued at the closing price of the Purchaser Common on the Nasdaq National Market on the day of distribution. Nothing in this Section 11.14(a)(xiii1.7(f) and shall limit the obligations of the Shareholders under Section 11.14(b1.7(e)(vii). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to In carrying out his functions under this Agreement, the Shareholders' Representative shall be permitted, in his discretion, to solicit from each of the Shareholders an advancement of funds in an amount sufficient to cover the anticipated expense associated with any indemnification necessary or appropriate act hereunder, and each Shareholder, consistent with such Shareholder's obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligenceSection 1.7(e)(vii) above, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at comply with such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialrequest.
Appears in 1 contract
Sources: Share Purchase Agreement (Incyte Pharmaceuticals Inc)
Shareholders’ Representative. (a) From Cirronet and after ▇▇▇▇▇▇▇ hereby appoint the ClosingShareholders’ Representative, and the Shareholders’ Representative hereby accepts such appointment, as the representative of the Cirronet Shareholders, the Cirronet Optionholders and ▇▇▇▇▇▇▇ for the limited purposes set forth herein, in the Letter of Transmittal, the Representative Appointment, the Earnout Agreement, the Registration Rights Agreement and the Parent Promissory Note. The parties hereto agree and acknowledge that (i) the Shareholders’ Representative’s power and authority to perform the duties and exercise the rights of the Shareholders’ Representative as contemplated by this Agreement (which shall include those matters set forth in the Letter of Transmittal and the Representative Appointment), the Earnout Agreement, the Registration Rights Agreement and the Parent Promissory Note are an integral part of this Agreement and have been bargained for by Parent and Cirronet; and (ii) the Shareholders’ Representative shall be authorized to act, vested with such power and be the agent authority as contemplated hereby.
(b) Each Cirronet Shareholder that executes and attorney-in-fact for and on behalf delivers a Letter of each Transmittal or accepts any portion of the Participating Equity Holders as contemplated by this Agreement Final Merger Consideration and otherwise bind all each Cirronet Optionholder that executes and delivers a Representative Appointment or accepts any Cirronet Assumed Option or Cirronet Exchanged Option (or any portion of the Participating Equity Holders for Earnout Consideration pursuant to the purposes of this Earnout Agreement. The Participating Equity Holders ) shall be consenting to the Shareholders’ Representative’s appointment and agreeing to be bound by all actions taken by the Shareholders’ Representative in his or her capacity as the Shareholders’ Representative as contemplated hereby and documents executed in the Earnout Agreement, Registration Rights Agreement and Parent Promissory Note, and neither Parent nor the Surviving Corporation shall be liable to any of the Cirronet Shareholders, Cirronet Optionholder or ▇▇▇▇▇▇▇ for any action taken or omitted to be taken by Parent or the Surviving Corporation in reliance on, or for any action taken or omitted to be taken by, the Shareholders’ Representative as contemplated hereby.
(c) Parent shall provide the Shareholders’ Representative, at Parent’s expense, with such secretarial, clerical, administrative and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving office support as the Shareholders’ Representative may not resign nor be removed. In connection reasonably request in order for the Shareholders’ Representative to perform the duties or exercise the rights of the Shareholders’ Representative as contemplated hereby, including, without limitation, handling mailings, payments and other distributions and correspondence with such authorizationthe Cirronet Shareholders, the Cirronet Optionholders, ▇▇▇▇▇▇▇ or Parent, all as Shareholders’ Representative may reasonably request and direct.
(d) The Shareholders’ Representative shall be the sole Person authorized and empowered entitled to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and reimbursement in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi1.10(d) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any for all reasonable cost and expense out-of-pocket expenses incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and duties or exercise of the Escrow Agreement, rights of the Shareholders’ Representative shall have as contemplated hereby, including, without limitation, the right at reasonable fees of any time and from time to time to select and engage attorneyslegal counsel, accountants, investment bankers, advisors, accountants or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred retained by the Shareholders’ Representative and shall be reimbursed in accordance connection with this Section 11.14(a)(xiii) and Section 11.14(bperforming such duties or exercising such rights (collectively, the “Expenses”). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable may submit to Parent all invoices and similar documentation evidencing the Expenses. On each date upon which an amount becomes payable by Parent under the Parent Promissory Note or the Earnout Agreement, Parent shall (i) deduct from such amount payable all Expenses for any loss of principal of which the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own fundshas not been reimbursed, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available (ii) pay the amount of such Expenses to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, and (iii) pay the remainder of such amount payable under the Parent Promissory Note or at Earnout Agreement, as applicable, in accordance with the terms thereof. Any such earlier time as the payment to Shareholders’ Representative may determine for reimbursement of Expenses shall be applied first to reduce the amount of any Earnout Consideration payable pursuant to the Earnout Agreement, then to any accrued interest on the Parent Promissory Note outstanding on the date of such payment until such interest is reduced to zero, followed by a reduction in its sole discretionthe principal amount thereof. [***] Certain information Anything in this document has been excluded pursuant Section 1.10(d) to Regulation S-Kthe contrary notwithstanding, Item 601(b)(10). Such excluded information is both (i) not material and (ii) Parent shall be obligated to reimburse Expenses only upon satisfaction of all the type that the Registrant treats as private or confidential.following conditions:
Appears in 1 contract
Shareholders’ Representative. (a) From Except as expressly provided herein, the rights, duties, obligations, status and after successorship of the ClosingShareholders' Representative shall be determined as provided in the Appointment Agreements among the Shareholders' Representative and the Participating Holders and in the form contemplated by the Merger Agreement (the "Appointment Agreements"). Notwithstanding the foregoing, in the event of any conflict or inconsistency between the provisions of this Agreement and the Appointment Agreement, the provisions of the Appointment Agreement shall govern. All decisions of the Shareholders' Representative pursuant to this Agreement shall be binding upon the Participating Holders. The Shareholders' Representative shall keep the Participating Holders reasonably informed of his or her decisions of a material nature.
(b) The Shareholders' Representative is authorized to take any action deemed by him appropriate or necessary to carry out the provisions of, and to determine the rights of the Participating Holders under this Agreement. The Shareholders' Representative shall promptly notify the Escrow Agent of any change in the address of any Participating Holder or any transfer (by operation of law or otherwise) of the right of any Participating Holder to receive Escrow Shares hereunder. The Shareholders' Representative shall serve as the agent of the Participating Holders for all purposes related to this Agreement, including without limitation service of process upon the Participating Holders. By his or her execution of this Agreement, the Shareholders’ ' Representative accepts and agrees to diligently discharge the duties and responsibilities of the Shareholders' Representative set forth in this Agreement. The authorization and designation of the Shareholders' Representative under this Section 7(b) shall be binding upon the successors and assigns of each Participating Shareholder. SWI and the Escrow Agent shall be entitled to rely upon such authorization and designation and shall be fully protected in dealing with the Shareholders' Representative, and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the Shareholders' Representative.
(c) The Shareholders' Representative (i) shall be entitled to treat as genuine any letter or other document furnished to him or her by SWI or the Escrow Agent and believed by him or her to be genuine and have been signed and presented by the proper party or parties; and (ii) shall be reimbursed for counsel fees and other out-of-pocket expenses incurred by the Shareholders' Representative in connection with this Agreement out of the net proceeds from the sale of Escrow Shares by the Escrow Agent as provided in paragraph (d) below.
(d) The Shareholders' Representative shall not be entitled to any compensation for services hereunder. To the extent the Shareholders' Representative shall incur out-of-pocket costs in the performance of his duties hereunder, the Shareholders' Representative shall be authorized to act, and be direct the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by Escrow Agent to distribute to the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled ' Representative for sale in the open market that number of Escrow Shares sufficient to rely exclusively on any action or decision of generate net proceeds to reimburse the Shareholders’ Representative. The Person serving as the Shareholders’ ' Representative may not resign nor be removed. In connection with for such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirableout-of-pocket costs; provided, however, that the relative interests aggregate Closing Market Value of all Escrow Shares distributed to the Shareholders' Representative and sold for such purpose to pay expenses incurred with respect to defending claims pursuant to Section 10.5 of the Merger Agreement shall not exceed 12% of the aggregate Closing Market Value of all of the Escrow Shares and the aggregate Closing Market Value of all Escrow Shares distributed to the Shareholder Representative and sold to pay any other expenses incurred by the Shareholder Representative (together with any Escrow Shares sold to pay the arbitration expenses of the Participating Equity Holders in accordance with Section 7(e)) shall not exceed 3% of the aggregate Closing Market Value of all the Escrow Shares (collectively, the "Reimbursement Shares"). In the event that the aggregate Claims and Set Aside Amounts exceed or would exceed 85% of the Closing Market Value of all the Escrow Shares, the Reimbursement Shares shall be held and distributed to the Shareholders' Representative first, to the extent necessary to reimburse the Shareholders' Representative as contemplated by this Section, and second, any remaining Reimbursement Shares may be used to satisfy indemnification Claims of SWI or held as a Set Aside Amount until all claims are satisfied or the Escrow Shares are exhausted. At the direction of the Shareholders' Representative to distribute Escrow Shares pursuant to this Section and the submission to the Escrow Agent of documentation of the expenses incurred, the Escrow Agent shall effect payment of such shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and instructing the transfer agent and to issue a certificate for the number of shares requested by the Shareholders' Representative registered in the name of the Shareholders' Representative and to issue a replacement certificate for the remaining Escrow Shares to the Escrow Agent.
(e) To the extent that the Participating Holders are not altered obligated to pay arbitration expenses pursuant to Section 3(c), the Shareholders' Representative shall be authorized to, and shall, direct the Escrow Agent to distribute to the Shareholders' Representative for sale in the open market, that number of Escrow Shares sufficient to generate net proceeds that will satisfy such obligations; provided, however, the number of Escrow Shares distributed to the Shareholders' Representative and sold for such purpose shall be subject to the limitation set forth in Section 7(d) above. At the direction of the Shareholders' Representative to distribute Escrow Shares pursuant to this Section and the submission to the Escrow Agent of documentation of the expenses incurred, the Escrow Agent shall effect payment of such shares to the Shareholders' Representative by surrendering such Escrow Shares to SWI's transfer agent and instructing the transfer agent to issue a manner not contemplated certificate for the number of shares requested by the Shareholders' Representative registered in the name of the Shareholders' Representative and to issue a replacement certificate for the remaining Escrow Shares to the Escrow Agent. The Escrow Agent shall have no duty to determine, nor to verify any calculations or limitations set forth in Section 7(d) above, and shall rely on the Shareholders' Representative's request for shares to be within the guidelines set forth herein.
(f) Notwithstanding anything to the contrary in this Agreement, the Paying Agent Agreement or Shareholders' Representative shall not have any personal liability to SWI, the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, Agent or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than person as a result of its this Agreement, except for any liability (other than for a Claim itself or for any obligation of the Participating Holders to pay expenses or indemnify the Escrow Agent, for which the Shareholders' Representative shall not be liable) resulting from the gross negligence, negligence or willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ ' Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. Capital Alliance Ventures Inc. (asuch person and any successor or successors being the "SHAREHOLDERS' REPRESENTATIVE") From shall act as the representative of the holders of Company Shares and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and act on behalf of each of the Participating Equity Holders as contemplated by this Agreement such holders, and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by to take any and all actions required or permitted to be taken and documents executed by the Shareholders’ Representative' Representative under this Agreement or the Escrow Agreement, including, without limitation, with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article 8 and with respect to any actions to be taken by the Shareholders' Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of certain amounts in the Escrow Fund to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification (iii) take all actions necessary in the judgment of the Shareholders' Representative for the accomplishment of the foregoing), (iv) incur and be reimbursed for any reasonable expenses incurred by the Shareholders' Representative in connection with the performance of its duties thereunder, which amounts shall be payable from the Escrow Fund after all distributions to Amalco have been made, and (v) reserve from the Escrow Amount to be distributed to the former shareholders of the Company a reasonable estimate of the expenses necessary to resolve any amounts that are the subject of or could become the subject of a dispute. In all matters relating to this Article 8, the Shareholders' Representative shall be the only party entitled to assert the rights of the holders of the Company Shares. The Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision all statements, representations and decisions of the Shareholders’ ' Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Business Combination Agreement (Rainbow Technologies Inc)
Shareholders’ Representative. (a) From and after the ClosingWithout any further act of any Shareholder, the Shareholders’ Representative shall be authorized or any successor to act, and be the such individual appointed pursuant to this Section is hereby irrevocably appointed as agent and true and lawful attorney-in-fact for each Shareholder with full power of substitution or resubstitution, solely for the purposes set forth herein, such appointment being coupled with an interest and irrevocable. The Shareholders’ Representative will act as the representative of each Shareholder, and is authorized to act on behalf of each of the Participating Equity Holders as contemplated by Shareholder pursuant to this Agreement and otherwise bind all of or the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action Escrow Agreement or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreementany transaction contemplated herein or therein, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders toincluding:
(i) to give and receive communications and notices, to execute, as acknowledge, deliver, record and file all ancillary agreements, certificates and documents that the Shareholders’ Representative, this Agreement and any agreement Representative deems necessary or instrument entered into or delivered appropriate in connection with the Merger and consummation of the transactions contemplated by this AgreementTransactions or related thereto;
(ii) execute to negotiate, agree to, and deliver enter into settlements and compromises with respect to all matters herein or related thereto;
(iii) to waive any breach, right, failure, default or condition precedent under the Paying Agent Agreement;
(iv) to receive service of process in connection with any claims under this Agreement or any related document or instrument;
(v) to perform the obligations and exercise the Escrow Agreement and rights of all Shareholders under this Section 6.11, as well as any other obligations or rights expressly allocated to agree to such amendments or modifications thereto as the Shareholders’ RepresentativeRepresentative under this Agreement and any related document or instrument, in including the settlement of claims and disputes with the Parent or its sole discretionAffiliates; Agreement and Plan of Merger
(vi) to instruct the Escrow Agent, may deem necessary or desirable; provided, however, that upon the relative interests terms of the Participating Equity Holders are not altered Escrow Agreement, to distribute any Escrow Shares to any indemnified party in a manner not contemplated respect of Losses for which such indemnified party is believed by the Shareholders’ Representative to be entitled to indemnification under this Agreement, to distribute any Escrow Shares to Parent pursuant to Section 1.5, and to release any Escrow Shares to the Paying Agent Agreement or Shareholders pursuant to the terms of the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(ivvii) to use reasonable efforts to enforce and protect the rights and interests accept service of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment process on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of to accomplish the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall Each Shareholder will be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly bound by all actions taken by the Shareholders’ Representative in connection with its obligations hereunder or relating capacity thereas. The Shareholders’ Representative will, in a reasonably prompt manner, provide written notice to each Shareholder of any action taken by the Shareholders’ Representative pursuant to the transactions contemplated hereby authority delegated to the extent Shareholders’ Representative under this Section. The Shareholders’ Representative will at all times act in its capacity as Shareholders’ Representative in a manner that the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable Shareholders’ Representative believes to be in the Participating Equity Holders, in each case to the extent of each best interest of the Participating Equity HoldersShareholders taken as a whole. Neither the Shareholders’ respective interests therein.
(xiii) In connection Representative nor any of its agents or employees will 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 bad faith or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it and will not be liable for any action taken or omitted to be taken in good faith by the Shareholders’ Representative in accordance with the performance advice of its obligations hereunder and under the Paying Agent Agreement and the Escrow such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Shareholders’ Representative shall have will not be required to exercise any discretion or take any action. Each Shareholder will indemnify and hold harmless and reimburse the right at Shareholders’ Representative from and against such Shareholder’s Pro Rata Share of any time and from time to time to select and engage attorneysall Liabilities, accountantslosses, investment bankersdamages, advisorsclaims, costs, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary expenses suffered or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall arising out of or resulting from any action taken or omitted to be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing taken by the Shareholders’ Representative forunder this Agreement, other than such Liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s bad faith or willful misconduct. In all matters relating to this Section, the Shareholders’ Representative will be the only party entitled to assert the rights of the Company or, post-Closing, the Shareholders. Parent will be entitled to rely on all statements, actions, representations and decisions of the Shareholders’ Representative as being the binding acts of all Shareholders or any third-party expenses of them, notwithstanding any communication from any Shareholder to the contrary (other than communication regarding termination or replacement of the Shareholders’ Representative pursuant to this AgreementSection). Except for a notice regarding the change of the Shareholders’ Representative or with respect to dissenters’ rights, Parent and the Surviving Company shall be entitled to disregard any indemnification obligations pursuant notices or communications given or made by any Shareholder unless given or made through the Shareholders’ Representative.
(b) The Shareholders’ Representative may resign upon thirty (30) days’ prior written notice to this Agreementthe Shareholders. The Shareholders’ Representative will not may be liable for any loss changed or replaced by vote of principal a majority of the Expense Fund other than as Shareholders (computed on the basis of their respective interests in the Consideration, assuming that all of the Contingent Consideration is paid to the Shareholders) upon written notice to the Shareholders’ Representative. Any vacancy in the position of the Shareholders’ Representative may be filled by approval of the holders of a result majority in interest of its gross negligence, willful misconduct the Contingent Consideration. No bond will be required of the Shareholders’ Representative. Notices or fraud. communications to or from the Shareholders’ Representative will constitute notice to or from each Shareholder.
(c) The Shareholders’ Representative will hold these funds separate from its own fundshave no power or authority to bind Parent, and Parent will not use these funds have any Liability to any Person for its operating expenses any act or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside omission by the Participating Equity Holders at the time of ClosingShareholders’ Representative. Any funds remaining The Surviving Company is hereby relieved from any liability to any Person for any acts done in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion accordance with such decision, act, consent or instruction of the Shareholders’ Representative. Agreement and Plan of Merger
(d) Notwithstanding any term herein, Parent’s duties, obligation with respect to any payment to or at for the benefit of any Shareholder under this Agreement is to make such earlier time payment as the Shareholders’ Representative may determine in its sole discretiondirects. [***] Certain information in this document has been excluded pursuant If such payment is properly made, then Parent will have no other responsibility or Liability with respect thereto and Parent will be entitled to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material rely conclusively and (ii) without independent verification on the type that payment directions provided by the Registrant treats as private or confidentialShareholders’ Representative.
Appears in 1 contract
Shareholders’ Representative. (a) From and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by By executing this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representativeor a Shareholder Joinder, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and consummating the transactions contemplated by this Agreement;
, or participating in such transactions and receiving the benefits thereof, including the right to receive the consideration payable in connection with such transactions, each Shareholder irrevocably authorizes and designates the Representative as the representative and agent of and on behalf of such Shareholder, and as such Shareholder’s true and lawful attorney-in-fact, with full power and authority in such Shareholder’s name, for all purposes in connection with this Agreement and any agreements ancillary hereto, including: (i) accepting notices on behalf of the Shareholders under this Agreement and any Transaction Document; (ii) execute providing any consent, certificate, instrument, receipt or approval on behalf of all Shareholders under this Agreement, and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments making, enforcing or modifications thereto as settling any claim under Articles 1, 5, 6, 7 on behalf of the Shareholders’ ; and (iii) taking any and all other actions and doing any and all other things provided in, or contemplated by, this Agreement or any Transaction Document to be performed by the Shareholder (to the extent all of the other Shareholders are also required to perform) arising out of the transactions contemplated hereby or thereby as Representative, in its sole discretion, may deem necessary determines to be necessary, appropriate or desirable. - 58 - Notwithstanding the foregoing sentence, Representative may not (x) increase any liability or obligation of a Shareholder under this Agreement or any Transaction Document without the prior written consent of such Shareholder or (y) take any action (including, without limitation, executing and delivering any consent, certificate, instrument, receipt, or approval) in respect of a Shareholder that discriminates against that Shareholder relative to the effect of such action on the other Shareholders unless the affected Shareholder gives his, her, their, or its prior written consent; providedprovided that for the avoidance of doubt, howeverthe Representative consenting to all or a portion of an indemnification claim under Article 7, that or entering into a settlement agreement with respect thereto, in accordance with the relative interests procedures, limitations of liability and Representative authority set forth in this Agreement shall not be deemed to implicate the foregoing clause (y) of the Participating Equity Holders are not altered previous sentence or require the prior written approval of such Shareholders pursuant to the previous sentence. The authorization of Representative is coupled with an interest and is in consideration of the mutual covenants in this Agreement and is irrevocable (unless a court of competent jurisdiction determines in a manner not contemplated by this Agreementfinal, the Paying Agent Agreement non-appealable judgment that Representative has engaged in willful misconduct or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed gross negligence in connection herewith, for in which case that Shareholder may, upon written notice to Buyer and on behalf Representative, revoke the appointment) and will not be terminated by operation of law, whether by the death or incapacity of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);Shareholder.
(ivb) to use reasonable efforts to enforce and protect the rights and interests Representative shall act as joint agent for all of the Participating Equity Holders and Shareholders, shall have the authority to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or bind each such Shareholder in any manner relating to accordance with this Agreement and any agreements ancillary hereto, and the transactions contemplated hereby andBuyer may rely on such appointment and authority and on the actions taken, decisions made or instructions given by Representative unless and until Buyer receives written notice of the appointment of a successor chosen by the Shareholders, acting by two-thirds consent (determined based on the Shareholders who received at least two-thirds of the Closing Merger Consideration as allocated in connection therewithaccordance with Annex I), upon thirty (30) days’ prior written notice to the Buyer. The Representative may (i) assert resign at any time, or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any be removed by those Shareholders who received at least two-thirds of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats Closing Merger Consideration as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders allocated in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoingAnnex I, in each case without having to seek or obtain upon thirty (30) days’ prior written notice, whereupon the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorneyShareholders who received at least two-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each thirds of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases Closing Merger Consideration as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed allocated in accordance with this Section 11.14(a)(xiiiAnnex I shall appoint and designate a new Representative. Further, the Representative shall be automatically removed (the “Automatic Removal”) and Section 11.14(b). The Expense Fund will be used for upon a final non-appealable determination by a court of competent jurisdiction or upon entry into a final binding settlement that the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its has committed gross negligence, willful misconduct or fraudfraud in any action taken hereunder or under its engagement letter. The Shareholders’ Representative will hold these funds separate from its own fundsNotwithstanding the first sentence of this Section 9.9(b), will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposesAutomatic Removal, the Expense Fund Shareholders who are to receive a majority of the Closing Merger Consideration as allocated in accordance with Annex I shall appoint and designate a new Representative.
(c) The Representative, in its capacity as the representative to the Shareholders and not in its capacity as a Shareholder of the Company, will be treated as having been received and voluntarily set aside incur no liability of any kind with respect to any action or omission by the Participating Equity Holders at Representative in connection with the time of Closing. Any funds remaining Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the Expense Fund event of liability directly resulting from the Representative’s gross negligence or willful misconduct. The Representative shall not be distributed liable for any action or omission pursuant to the Participating Equity Holders promptly following advice of counsel. Each Shareholder shall jointly and severally indemnify and hold harmless Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the completion fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement (as the Representative only) 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’s duties, the Representative will reimburse the Shareholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or at such earlier time as willful misconduct. If not paid directly to the Representative by the Shareholders’ , any such Representative Losses may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both be recovered by the Representative from (i) not material and any Earnout at such time as any amounts thereof would otherwise be distributable to the Shareholders; (ii) the type Escrow Amount; and (iii) the Contingency Escrow, but only after and to the extent that any remaining amount otherwise becomes distributable to the Registrant treats Shareholders; provided, that while this section allows the Representative to be paid from the aforementioned sources of funds, this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as private they are suffered or confidentialincurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Shareholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Shareholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Representative under this Section 9.9(c). The foregoing indemnities will survive the Closing, the resignation or removal of the Representative or the termination of this Agreement.
(d) Each Shareholder has authorized the Representative to direct the Escrow Agent to distribute from time to time amounts from the Escrow Account any amounts owed to the Buyer once the definitive Closing Merger Consideration Certificate has been determined under Section 1.6 and all Disputed Items have been determined and settled under Section
Appears in 1 contract
Shareholders’ Representative. (a) From The Shareholders hereby appoint Ampersand as the true and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the lawful agent and attorney-in-fact for of the Shareholders (the "SHAREHOLDERS' REPRESENTATIVE") with full power of substitution to act in the name, place and stead of the Shareholders with respect to the surrender of the stock certificates owned by the Shareholders to Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of Shareholders in any litigation or arbitration involving this Agreement. The Participating Equity Holders shall be bound by , do or refrain from doing all actions taken such further acts and documents executed by the Shareholders’ Representativethings, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving execute all such documents as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ ' Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders deem necessary or appropriate in connection with the activities transactions contemplated by this Agreement, including, without limitation, the power:
(a) to be performed act for the Shareholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement Shareholders and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf to transact matters of the Participating Equity Holders to:litigation;
(ib) executeto execute and deliver all ancillary agreements, as certificates and documents that the Shareholders’ Representative, this Agreement and any agreement ' Representative deems necessary or instrument entered into or delivered appropriate in connection with the Merger and consummation of the transactions contemplated by this Agreement;
(iic) execute to do or refrain from doing any further act or deed on behalf of the Shareholders that the Shareholders' Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and deliver completely as the Paying Agent Agreement Shareholders could do if personally present; and
(d) to receive service of process in connection with any claims under this Agreement. The appointment of the Shareholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer may conclusively and absolutely rely, without inquiry, upon any action of the Escrow Agreement and Shareholders' Representative in all matters referred to agree herein. If Ampersand resigns or is otherwise unable to such amendments or modifications thereto serve as the Shareholders’ ' Representative, the successor Shareholders' Representative shall be designated in its sole discretionwriting by the Shareholders who hold a majority of the shares of Buyer Series A Preferred Stock issued pursuant hereto. If any individual Shareholders should die or become incapacitated, may deem necessary if any trust or desirable; providedestate should terminate or if any other such event should occur, howeverany action taken by the Shareholders' Representative pursuant to this Section 1.11 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Shareholders' Representative or Buyer shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Buyer to the Shareholders shall be made to the Shareholders' Representative for the benefit of the Shareholders and shall discharge in full all notice requirements of Buyer to the Shareholders with respect thereto. The Shareholders hereby confirm all that the relative interests Shareholders' Representative shall do or cause to be done by virtue of its appointment as the Shareholders' Representative. The Shareholders' Representative shall act for the Shareholders on all of the Participating Equity Holders are not altered matters set forth in a this Agreement in the manner not contemplated by this Agreement, the Paying Agent Agreement or Shareholders' Representative believes to be in the Escrow Agreement;
(iii) give best interest of the Shareholders and receive notices permitted or required consistent with the obligations under this Agreement, but the Shareholders' Representative shall not be responsible to the Shareholders for any loss or any other agreement or document entered into or executed in connection herewith, for and on behalf damages the Shareholders may suffer by the performance by the Shareholders' Representative of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to its duties under this Agreement, other than loss or damage arising from willful violation of the Merger law by the Shareholders' Representative of its duties under this Agreement. The Shareholders' Representative and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication its legal representatives shall be given held harmless by the Shareholders from and indemnified against any loss or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders damages arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under in accordance with the Paying Agent Agreement and the Escrow provisions of this Agreement, except for any of the Shareholders’ Representative shall have foregoing arising out of the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses willful violation of such advisors shall constitute expenses incurred the law by the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b)of its duties hereunder. The Expense Fund will be used for foregoing indemnity shall survive the purposes of paying directly, resignation or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion substitution of the Shareholders’ ' Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Merger Agreement (TurboWorx, Inc.)
Shareholders’ Representative. (a) From Each Shareholder, by signing this Agreement, designates ▇▇▇▇▇▇ ▇▇▇▇▇▇ to be the “Shareholders’ Representative” for all purposes of this Agreement and after the ClosingAttendant Documents, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby accepts such designation. Any and all actions of the Shareholders following the Closing shall be taken by the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of all the Participating Equity Holders as contemplated by this Agreement Shareholders and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders Shareholders shall be bound by any and all actions taken by the Shareholders’ Representative on their behalf.
(b) Purchaser shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and documents the Attendant Documents and the transactions provided for hereunder and thereunder. Without limiting the generality of the foregoing, Purchaser shall be entitled to rely upon any communication or writings given or executed by the Shareholders’ Representative as the communication or writing of all Shareholders. All communications or writings to be sent to the Shareholders pursuant to this Agreement and the Attendant Documents shall be addressed to the Shareholders’ Representative, and Parent Group and other Indemnified Parties any communication or writing so sent shall be entitled deemed notice to rely exclusively all Shareholders. Each Shareholder hereby consents and agrees that the Shareholders’ Representative is authorized to make and accept deliveries, including any notice or consent, on behalf of such Shareholder and including acceptance, on behalf of all Shareholders, of service of process from Purchaser or its representatives with respect to any action claim brought by or decision on behalf of Purchaser hereunder or under the Attendant Documents.
(c) The Shareholders’ Representative is hereby appointed and constituted the true and lawful attorney in fact of each Shareholder, with full power of substitution and resubstitution in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement in the absolute discretion of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered in general to actdo all things and to perform all acts, on behalf of each of the Participating Equity Holders including without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement or the activities to be performed Attendant Documents, amending on behalf of the Participating Equity Holders Shareholders this Agreement or the Attendant Documents, waiving any or all rights of the Shareholders under this Agreement or the Attendant Documents, settling any and all claims for indemnification pursuant to Article 9 of this Agreement, and settling all disputes relating to the Paying Agent Agreement Purchase Price pursuant to Article 3 of this Agreement. This power of attorney and the Escrow Agreement, for the purposes and with the powers and all authority hereinafter set forth which shall include, the power and authority on behalf hereby conferred is granted in consideration of the Participating Equity Holders to:mutual covenants and agreements made herein, and shall be irrevocable and coupled with an interest and shall not be terminated by any act of any Shareholder, by operation of law, whether by death or any other event.
(id) execute, In the event of the death of ▇▇▇▇▇▇ ▇▇▇▇▇▇ or the resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇ as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated then each Shareholder, by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by signing this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions purposes of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby accepts such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialdesignation.
Appears in 1 contract
Shareholders’ Representative. (a) From and after the Closing, the The Shareholders’ Representative is hereby appointed, authorized and empowered to act as a representative for the benefit of the holders of the Shares (which for purposes of this Section 9.1 shall be authorized to actnot include Disappearing Sub or KMG or holders of Dissenting Shares), and be as the exclusive agent and attorney-in-fact for and to act on behalf of each such holder of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ RepresentativeShares, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with and to facilitate the activities to be performed on behalf consummation of the Participating Equity Holders under this Agreementtransactions contemplated hereby and any post-Closing matters, the Paying Agent Agreement and the Escrow Agreementincluding, for the purposes and with the powers and authority hereinafter set forth without limitation, Article XI, which shall include, include the power and authority on behalf of the Participating Equity Holders toauthority:
(i) executesubject to Section 9.1(e), as the Shareholders’ Representative, to execute and deliver such waivers and consents in connection with this Agreement and any agreement each other agreement, document, instrument or instrument entered into certificate referred to herein or delivered in connection with the Merger and therein or the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments provided for herein or modifications thereto therein as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iiiii) give and receive notices permitted or required under this Agreementas representative, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders holders of the Shares (including the Shareholders’ Representative, in his capacity as a Shareholder in Val-Tex) and to enforce and protect the rights and interests of the Participating Equity Holders Shareholders’ Representative arising out of or under or in any manner relating to this Agreement and each other agreement, document, instrument or certificate referred to herein or therein or the transactions contemplated hereby provided for herein or therein (including, without limitation, in connection with any and all claims for indemnification brought under Article XI hereof and Reverse Merger Consideration adjustments pursuant to Section 2.5), and to take any and all actions that the Shareholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the holders of the Shares, including, without limitation, asserting or pursuing any Legal Proceeding against KMG, Disappearing Sub and/or the Final Surviving Entity, defending any Third-Party Claims or claims by the KMG Indemnified Parties, consenting to, compromising or settling any such claims, conducting negotiations with KMG, the Final Surviving Entity and their respective representatives regarding such claims, and, in connection therewith, to (iA) assert or institute any Legal Proceeding or make any indemnification claimsinvestigation; (iiB) investigate, defend, contest or litigate any claim initiated by KMG, the Final Surviving Entity or any other Person, or by any Governmental Body against the Shareholders’ Representative and any of the holders of the Shares, and receive process on behalf of any or all holders of the Shares in any such claim 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; (C) file any proofs of debt, claims and petitions as the Shareholders’ Representative may deem advisable or necessary; (D) settle or compromise any Proceeding relating to claims asserted under this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iiiE) file and prosecute appeals from any decision, judgment or award rendered in any of such Legal Proceeding, it being understood that the foregoing ProceedingsShareholders’ 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;
(viii) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense refrain from enforcing any right of the Participating Equity Holders for holders of the Independent Accountant Shares or any of them and/or the Shareholders’ Representative arising out of or under or in any manner relating to this Agreement or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent agreement, instrument or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions document in connection with the resolution of any dispute relating hereto or foregoing; provided, however, that no such failure to act on the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion 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 or by the holders of the Shares unless such waiver is in writing signed by the waiving party or by the Shareholders’ Representative; and
(iv) to make, execute, acknowledge and deliver this Agreement, 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 and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith, including retaining counsel, accountants and other experts and incurring fees and expenses.
(b) The Shareholders’ Representative shall not be entitled to any fee, commission or other compensation for the accomplishment performance of its services hereunder. In connection with this Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the foregoing and all of powers conferred upon the other termsShareholders’ Representative hereunder, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material the Shareholders’ Representative shall incur no responsibility whatsoever to any holders of the Shares by reason of any error in judgment or other act or omission performed or omitted under this Agreement or any such other agreement, instrument or document, excepting only responsibility for any act or failure to act that represents willful misconduct or gross negligence, and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative advice of counsel, public accountants or other independent experts experienced in the matter at issue, and treat any error in judgment or other act or omission of the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for pursuant to such advice shall in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to no event subject the Shareholders’ Representative and to Liability to any reasonable cost and expense incurred directly or indirectly by holders of the Shareholders’ Representative in connection with its obligations hereunder or relating Shares. Without prejudice to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreementforegoing, the Shareholders’ Representative shall have no Liability in respect of any Legal Proceeding brought against the Shareholders’ Representative by any holder of the Shares if the Shareholders’ Representative took or omitted taking any action in good faith. Each holder of the Shares shall indemnify, pro rata based upon such holder’s portion of the aggregate Reverse Merger Consideration, the Shareholders’ Representative against all losses, damages, Liabilities, claims, obligations, costs and expenses, 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 Legal Proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Shareholders’ Representative hereunder or otherwise. The foregoing indemnification shall not apply in the event of any Legal Proceeding that 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 the holders of Shares as to the existence of a deficiency toward the payment of any such indemnification amount and the Shareholders’ Representative providing a reasonably detailed description as to such deficiency, each holder of Shares shall promptly deliver to the Shareholders’ Representative full payment of his ratable share of the amount of such deficiency based upon such holder’s pro rata portion of the aggregate Reverse Merger Consideration.
(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) KMG, Disappearing Sub, Surviving Sub and Final Surviving Entity shall have the right at any time and from time to time rely upon all actions taken or omitted to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred be taken by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification all of which actions or omissions shall be legally binding upon the holders of the Shares. Nothing in this Section 9.1 shall alter the obligations pursuant to or rights of KMG or the Final Surviving Entity found in the rest of this Agreement. The , it being understood that the obligations of such parties under this Section 9.1 are limited to KMG’s payment of the Reverse Merger Consideration.
(e) Notwithstanding the other provisions of this Section 9.1, other than the last sentence of Section 9.1(d), unless the affected holder consents in writing, the Shareholders’ Representative will shall not be liable for agree to any loss amendments or modifications of, and shall not execute and deliver any waivers or consents in connection with, this Agreement or the other agreements and documents referred to herein or therein, that (i) does not treat all holders of principal a particular series or class of the Expense Fund other than Shares equally in all material respects, (ii) increases the indemnity obligations of the holders of the Shares referenced in Sections 11.2 and 11.6, or (iii) increases the Indemnity Holdback.
(f) Subject to Section 9.1(e), the Share Surrender Forms shall include the provisions contained in Section 9.1(a) and Section 9.1(b) with such changes, additional terms, conditions, representations, warranties, releases, waivers, covenants, indemnities, consents and appointments as a result of its gross negligence, willful misconduct or fraud. The the Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds either reasonably requests or deems necessary or appropriate for its operating expenses or any other corporate purposes the consummation of the Transactions.
(g) The grant of authority provided for herein (i) is coupled with an interest and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed irrevocable and survive the death, incompetence, bankruptcy or liquidation of any holder of the Shares; and (ii) shall survive the consummation of the transactions contemplated herein.
(h) Should the Shareholders’ Representative resign or be unable to serve, either (A) the Participating Equity Holders promptly following Shareholders’ Representative shall appoint a single substitute agent to take on the completion responsibility of the Shareholders’ Representative hereunder or (B) if ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III is unable to make such appointment, Councill shall appoint a single substitute agent to take on the responsibility of the Shareholders’ Representative hereunder, whose appointment shall be effective on the date of the Shareholders’ Representative’s dutiesresignation or incapacity.
(i) The provisions of this Section 9.1 are (i) intended to be for the benefit of, or at such earlier time as and shall be enforceable by, the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in and such Person’s heirs, representatives, successors or assigns, it being expressly agreed that such Persons shall be third party beneficiaries of this document has been excluded pursuant to Regulation S-KSection 9.1, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type in addition to, and not in substitution for, any other right to indemnification or contribution that the Registrant treats as private any such Person may have by contract or confidentialotherwise.
Appears in 1 contract
Sources: Merger Agreement (KMG Chemicals Inc)
Shareholders’ Representative. (a) From Each Significant Shareholder hereby irrevocably makes, constitutes and after the Closingappoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as his, the Shareholders’ Representative shall be authorized to act, and be the her or its exclusive agent and true and lawful attorney-in-fact for with full power of substitution to do any and on behalf all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or including but not limited to: (i) make all actions permitted or required decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any Participating Equity Holder amounts payable or necessary in distributable to the sole discretion Sellers hereunder; (iii) execution and delivery, on behalf of Sellers, the Shareholders’ Representative for Stock Escrow Agreement and Cash Escrow Agreement and any other document required by this Agreement; (iv) receipt of payments hereunder and under the accomplishment Stock Escrow Agreement and the Cash Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of notices and communications pursuant to this Agreement, the foregoing Stock Escrow Agreement and all of the other terms, conditions Cash Escrow Agreement; (vi) administration of this Agreement, the Stock Escrow Agreement, and the Cash Escrow Agreement, including the resolution of any dispute or claim; [***] Certain information in this document has been excluded (vii) the resolution, settlement, or compromise of any claim for indemnification asserted against Sellers pursuant to Regulation S-K, Item 601(b)(105.1(a). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
; (viii) consult with legal counselasserting, independent public accountants and other experts selected by it, solely at the cost and expense on behalf of the Participating Equity Holders;
Sellers, claims for indemnification under Section 5.1(b) and resolving, settling or compromising all such claims; (ix) consent or agree to any amendment to this Agreement Agreement, or to waive waiver of any of its terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof conditions; and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Seller or other Person under any circumstance. Parent Group In the event that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is unwilling or unable to serve as Shareholders’ Representative, then each Significant Shareholder hereby irrevocably makes, constitutes and their respective Affiliates appoints R. ▇▇▇▇ ▇▇▇▇ as Shareholders’ Representative for all purposes of this Agreement. In the event that both ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and R. ▇▇▇▇ ▇▇▇▇ are unwilling or unable to serve as Shareholders’ Representative, then each Significant Shareholder hereby irrevocably makes, constitutes and appoints ▇▇▇▇ Friendly as Shareholders’ Representative for all purposes of this Agreement.
(including after b) Buyer and the Effective Time, the Surviving Corporation) Escrow Agent shall be entitled to rely on fully protected in dealing with the Shareholders’ Representative under this Agreement and treat may rely upon the authority of the Shareholders’ Representative to act as agent of the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash Sellers. Any payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable by Buyer to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly under this Agreement shall be considered a payment by Buyer to the Sellers. The appointment of the Shareholders’ Representative is coupled with an interest and shall be irrevocable by any Seller in connection with its obligations hereunder any manner and for any reason. This power of attorney shall not be affected by the disability or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each incapacity of the Participating Equity Holders’ respective interests thereinprincipal pursuant to any applicable law.
(xiiic) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, The Shareholders’ Representative acknowledges that the Shareholders’ Representative shall have has carefully read and understands this Agreement and the right at any time form of Individual Seller Agreement to be entered into by the Minority Shareholders, hereby accepts such appointment and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)designation, and maintain such records, represents that he will act in his capacity as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative in strict compliance with and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for conformance to the purposes provisions of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Shareholders’ Representative. (a) From By virtue of their execution of this Agreement, without further action of any Shareholder, each Shareholder shall be deemed to have irrevocably constituted and after the Closingappointed M▇▇▇▇ ▇▇▇▇▇ (which, by execution of this Agreement, hereby accepts such appointment) to act as the Shareholders’ Representative shall be and as the authorized to act, and be the sole agent and attorney-in-fact for and on behalf of each the Shareholders (in their capacity as such), with full power of substitution, to take all actions on behalf of the Participating Equity Holders as contemplated by Shareholders in connection with this Agreement, including (i) to execute and deliver on behalf of the Shareholders any amendment, consent or waiver under this Agreement and otherwise bind the other Transaction Documents, (ii) to assert, and to agree to resolution of, all claims and disputes hereunder or thereunder, including under Section 2.05 and Article 9, (iii) to retain legal counsel and other professional services, at the expense of the Participating Equity Holders for Shareholders, in connection with the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed performance by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision Representative of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreementother Transaction Documents, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce execute and protect deliver on the rights Shareholders’ behalf all documents and interests of the Participating Equity Holders instruments which may be executed and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating delivered pursuant to this Agreement and the transactions contemplated hereby andother Transaction Documents, (v) to make and receive notices and other communications pursuant to this Agreement and the other Transaction Documents and service of process in connection therewithany Action arising out of or related to this Agreement and the other Transaction Documents, (vi) to (i) assert or institute any Proceeding or make any indemnification claims; (ii) negotiate, settle or compromise any Proceeding relating Action arising out of or related to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in other Transaction Documents or any of the foregoing Proceedings;
(v) object transactions hereunder or thereunder, including to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions action (or determine not to take action) in connection with the defense, prosecution, settlement, compromise or other resolution of any dispute relating hereto or claim hereunder (including any claim for indemnification pursuant to the transactions contemplated by this Agreement, by arbitration, settlement or otherwiseArticle 9), and take or forego any or (vii) to do each and every act and exercise all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type rights that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
are either (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoingforegoing or (y) mandated or permitted by the terms of this Agreement or the other Transaction Documents. The Shareholders’ Representative shall use reasonable efforts to keep the Shareholders reasonably informed with respect to actions of the Shareholders’ Representative pursuant to the authority granted to the Shareholders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Shareholders.
(b) The power of attorney granted in this Section 12.15 is coupled with an interest and is irrevocable, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall may be entitled to rely on delegated by the Shareholders’ Representative and treat shall survive the death or incapacity of each Shareholder. Such agency may be changed by the Shareholders with a majority of the Pro Rata Portion of all of the Shareholders (including in the event of the resignation, death, disability or other incapacity of an Shareholders’ Representative that is an individual), and, following the provision of notice to Buyer, the newly appointed representative shall be the Shareholders’ Representative for all purposes hereunder, and any such successor shall succeed the Shareholders’ Representative as the duly appointed attorney-in-fact Shareholders’ Representative hereunder. Neither the removal of, nor the appointment of a successor to, the Shareholders’ Representative shall affect in any manner the validity or enforceability of any actions taken or agreements, understandings or commitments entered into by the prior Shareholders’ Representative, which shall continue to be effective and binding on the Shareholders. For the avoidance of doubt, any compromise or settlement of any matter by the Shareholders’ Representative hereunder shall be binding on, and fully enforceable against, all Shareholders. No bond shall be required of the Shareholders’ Representative.
(c) A decision, act, consent or instruction of the Shareholders’ Representative hereunder shall constitute a decision, act, consent or instruction of all of the Shareholders and shall be final, binding and conclusive upon each of the Shareholders, Buyer, and, after the Closing, the Company, may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold every such Shareholder. The Buyer Indemnified Parties are hereby relieved from any cash payment Liability to any Person for any acts done by them in accordance with any such decision, act, consent or distribution instruction of the Shareholders’ Representative. Each Shareholder hereby agrees that for any Action arising under this Agreement or any other Transaction Document, such Shareholder may be served legal process by registered mail to the Participating Equity Holders on address set forth in Section 12.01 for the Shareholders’ Representative (or any alternative address designated to the Parties in writing by the Shareholders’ Representative), and after the date hereof, the amount that service in such manner shall be adequate and such Shareholder shall not assert any defense of claim that service in such manner was not adequate or sufficient in any fee payable court in any jurisdiction. Each Shareholder shall promptly provide written notice to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent change of each address of the Participating Equity Holders’ respective interests therein.
(xiii) In connection such Shareholder. Concurrently with the performance execution of its obligations hereunder and under the Paying Agent Agreement and the Escrow this Agreement, the Shareholders’ Representative shall have obtain an irrevocable proxy from each Shareholder in connection with the right at Cash Sweep Dividend.
(d) Without limiting the generality of the foregoing and for the avoidance of doubt, for purposes of Article 9, if any time and from time to time to select and engage attorneys, accountants, investment bankers, advisorsShareholder Indemnified Party is seeking indemnification as the Indemnified Party hereunder, or consultants and obtain indemnification is sought against any Shareholder as an Indemnifying Party hereunder, then, in either such other professional and expert assistance (in all cases as reasonably necessary)case, the Shareholders’ Representative shall act on behalf of, and maintain receive notice on behalf of, such recordsShareholder.
(e) The Shareholders’ Representative, solely in his capacity as the representative of the Shareholders, represents and warrants to Buyer, as reasonably necessary or desirableof the date hereof and as of the Closing Date, as follows:
(i) the execution and delivery of this Agreement by the Shareholders’ Representative, and incur other reasonable out-of-pocket expenses. The fees the performance by the Shareholders’ Representative of his obligations hereunder, have been duly authorized by all necessary corporate action on the part of the Shareholders’ Representative;
(ii) this Agreement has been duly executed and expenses of such advisors shall constitute expenses incurred delivered by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) Agreement constitutes a legally valid and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion binding obligation of the Shareholders’ Representative’s duties, or at such earlier time as enforceable against the Shareholders’ Representative in accordance with its terms (except as may determine in be limited by the Enforceability Exceptions); and
(iii) the execution and delivery hereof and of the Transaction Documents to which it is (or will be) a party by the Shareholders’ Representative, and the performance by the Shareholders’ Representative of his obligations hereunder and thereunder, do not and will not (A) violate any Applicable Laws or (B) require any consent or approval that has not been given or other action that has not been taken by any Person under any Contract binding upon the Shareholders’ Representative.
(f) Each Shareholder, by its sole discretion. [***] Certain information acceptance of its portion of the Closing Consideration payable at the Closing hereunder, accepts and agrees to be bound by the provisions set forth in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialSection 12.15.
Appears in 1 contract
Shareholders’ Representative. (a) From and after the Closing, the Shareholders’ Representative shall be authorized to act, and be the agent and Each Shareholder irrevocably appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (“Shareholders Representative”) as such Shareholder’s attorney-in-fact for and agent, with full power of substitution to act in the name, place and stead of such Shareholder with respect to the delivery of such Shareholder’s Shares to Parent in accordance with the terms and conditions of this Agreement and to act on behalf of each of the Participating Equity Holders as contemplated by such Shareholder in any litigation or arbitration involving this Agreement and otherwise bind to do or refrain from doing all such further acts and things, and to execute all such documents, as such Shareholders Representative shall deem necessary or appropriate in connection with any of the Participating Equity Holders for the purposes of above transactions contemplated under this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ RepresentativeIncluding, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders towithout limitation:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement To take all action necessary or instrument entered into or delivered desirable in connection with the waiver of any condition to the obligations of the Shareholders to consummate the Merger and the other transactions contemplated by this Agreement;
(ii) execute To receive, hold and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this AgreementParent, the Paying Agent Agreement or the Escrow AgreementCompany Stock Certificates accompanied by executed Letters of Transmittal and any other documents relating thereto on behalf of such Shareholder;
(iii) give To execute and receive notices deliver all ancillary agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted or required under this Agreement, or any other agreement or document entered into or executed to be given in connection herewith, for and on behalf with the consummation of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any the other matters transactions contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually)Agreement;
(iv) to use reasonable efforts to enforce To receive funds and protect the rights and interests give receipt for funds including in respect of the Participating Equity Holders Aggregate Merger Consideration, and any adjustments thereto, to distribute to Shareholders their respective share of the Aggregate Merger Consideration, and any adjustments thereto, and to enforce and protect withhold from such funds a contingency reserve for the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating matters referred to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedingsherein;
(v) object To give and receive all notices and communications to such be given or received under this Agreement and to receive service of process in connection with any claims pursuant to Section 9.2 and Section 9.3;under this Agreement, including service of process in connection with arbitration; and
(vi) pay To take all actions which under this Agreement may be taken by the cost Shareholders Representative and expense of the Participating Equity Holders for the Independent Accountant to do or refrain from doing any other payment further act or deed on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ each Shareholder which Shareholders Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions deems necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group his sole and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or absolute discretion relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment subject matter of this Agreement as fully and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereincompletely as such Shareholder could do if personally present.
(xiiib) In connection with If ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ dies or otherwise becomes incapacitated and unable to serve as Shareholders Representative, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall become Shareholders Representative. The death or incapacity of any Shareholder shall not terminate the performance agency and power of its obligations hereunder and under attorney hereby granted to the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Shareholders Representative. The appointment of Shareholders Representative shall have 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 Shareholders Representative, as the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (action of the Shareholders in all cases matters referred to herein. 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 Shareholders Representative in his role as reasonably necessary)such, and maintain except for any action or omission made fraudulently or in bad faith with respect to such records, as reasonably necessary or desirable, and incur other Shareholder.
(c) All reasonable out-of-pocket expenses. The expenses and fees (including fees payable to counsel and other professionals including brokerage fees) incurred by Shareholders Representative in connection with performing such function and in connection with the Merger and the other transactions contemplated hereby and all payments, damages, costs, fees and expenses in connection with any claim by or other dispute with Parent or the Surviving Company under this Agreement shall be paid by Shareholders in proportion to their respective interests in the Shares and may be deducted by Shareholders Representative from any amounts otherwise payable to any Shareholder hereunder. Shareholder’s Representative may withhold from funds received on behalf of Shareholders prior to distribution of such advisors shall constitute funds to Shareholders any amount which Shareholders Representative deems necessary as a reserve for any such fees, expenses incurred and claims, and as a reserve for any potential decrease to the Aggregate Merger Consideration pursuant hereto.
(d) Even though the Shareholders have joint and several obligations to Parent and Merger Sub hereunder, the Shareholders agree among themselves that any amounts to be paid to the Shareholders under this Agreement following the Closing and any amounts owed by the Shareholders’ Representative and Shareholders under this Agreement following the Closing shall be reimbursed paid to or borne by the Shareholders proportionately in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialtheir Ownership Percentages.
Appears in 1 contract
Shareholders’ Representative. (a) From In addition to the other rights and after the Closing, authority granted to the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by elsewhere in this Agreement and otherwise bind all of except as expressly provided herein, by participating in the Participating Equity Holders for the purposes execution and delivery of this Agreement. The Participating Equity Holders shall be bound by all actions taken Agreement and documents executed by receiving the Shareholders’ Representativebenefits thereof, and Parent Group and other Indemnified Parties shall be entitled including the right to rely exclusively on any action or decision of receive the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders consideration payable in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitrationeach Company Shareholder (which, settlement for the purpose of this Section 12.11, shall also mean each Company Shareholder) hereby irrevocably authorizes and appoints Shareholders’ Representative as agent, attorney-in-fact and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or otherwiserelating to the transactions contemplated hereby, with full power of substitution to act in the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and take or forego any or to execute all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of such documents, as the Shareholders’ Representative for the accomplishment shall determine to be necessary or appropriate in conjunction with any of the foregoing transactions contemplated by this Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the other termsCompany Shareholders. Without limiting the generality of the foregoing, conditions the Shareholders’ Representative has full power and authority, on behalf of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-Keach Company Shareholder and such Company Shareholder’s successors and assigns, Item 601(b)(10). Such excluded information is both to: (i) not material interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counselexecute and deliver and receive deliveries of all agreements, independent public accountants certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other experts selected by it, solely at documents required or permitted to be given in connection with the cost and expense consummation of the Participating Equity Holders;
transactions contemplated by this Agreement, (ixiii) consent or receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to any amendment such claims, and to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in each case any way to the transactions contemplated hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement.
(b) Service by the Shareholders’ Representative shall be without having compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of SPAC and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or obtain instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of any Person under any circumstancethe Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. Parent Group In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and their respective Affiliates (including after a copy of the Effective Timewritten consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the Surviving Corporation) later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and treat be entitled to use the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the dutiesFund, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereofdefined below, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyfor, or reimbursing the Shareholders’ Representative for, any third-party and all costs and expenses pursuant (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”). At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to this Agreement, any indemnification obligations pursuant to this Agreementthe Company Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be liable for any loss of principal of the Expense Fund other than subject to as a result of its gross negligencehis duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct misconduct.
(h) The Shareholders’ Representative shall have no duties or fraudresponsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative will hold these funds separate from its own funds, will shall not use these funds for its operating expenses or be liable to any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed Company Shareholder relating to the Participating Equity Holders promptly following the completion performance of the Shareholders’ Representative’s dutiesduties or exercise of any rights under this Agreement for any errors in judgment, negligence, oversight, breach of duty or at such earlier time 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-Kthis Agreement; provided, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type however, that the Registrant treats 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 convincing evidence that the actions taken or not taken by the Shareholders’ Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall 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 appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as private such, shall not be liable to SPAC or confidentialany Affiliate of SPAC by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (DT Cloud Acquisition Corp)
Shareholders’ Representative. (aA) From Each of the Shareholders hereby irrevocably constitutes and after the Closingappoints Andrew M. ▇▇▇▇▇▇, the Shareholders’ Representative shall be authorized to act▇▇▇, and be the ▇nd Mr. Hunt▇▇ ▇▇▇▇▇▇ accepts such appointment, as their agent and attorney-in-fact for with full power of substitution and revocation to do any and all things and execute any and all documents on his or her behalf which may be necessary, convenient or appropriate with respect to: (i) amendments to this Agreement, provided that no amendment shall materially adversely affect the rights of each any one Shareholder relative to any other Shareholders; (ii) the execution of documents and certificates pursuant to this Agreement; (iii) determination of the Participating Equity Holders as contemplated by this Agreement Working Capital Adjustment; (iv) receipt and otherwise bind all forwarding of the Participating Equity Holders for the purposes of notices and communications pursuant to this Agreement; and (v) negotiation and compromise of any indemnity claims made by Buyer hereunder. The Participating Equity Holders shall be bound by Shareholders Representative is authorized (i) to take all actions taken and documents executed by which the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action Shareholders Representative considers necessary or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders desirable in connection with the activities defense, pursuit or settlement of any determinations relating to the matters described above, including to sue, def▇▇▇, negotiate, settle and compromise any such claims for indemnification made by Buyer pursuant to this Agreement or any of the agreements or transactions contemplated hereby; (ii) to engage and employ agents and representatives (including accoutants, legal counsel and other professionals) and to incur such other expenses as he shall deem necessary or prudent in connection with the administration of the foregoing; and (iii) to take all other actions and exercise all other rights which the Shareholders Representative (in his sole discretion) considers necessary or appropriate in connection with the foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Shareholders Representative shall have no duties or responsibilities except as expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Shareholder shall otherwise exist against the Shareholders Representative.
(B) The Buyer and DBI shall be performed fully protected in dealing with Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇his Agreement and may rely upon the authority of Mr. Hunt▇▇ ▇▇ act as the Shareholders Representative. The Shareholders Representative is authorized to act on the Shareholders' behalf notwithstanding any dispute or disagreement among the Shareholders. The appointment of Mr. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇led with an interest and is irrevocable by any Shareholder in any manner or for any reason, unless written revocation is personally delivered to Mr. Hunt▇▇ ▇▇▇ ▇▇▇ Buyer on or prior to the time that action on behalf of the Participating Equity Holders Shareholders is taken or payments or deliveries are made, in which case such revocation shall only apply to actions taken or proposed to be taken after receipt of such notice. This power of attorney shall not be affected by the death, disability or incapacity of any Shareholder.
(C) If at any time there is no person acting as Shareholders Representative for any reason, the Shareholders holding a majority interest in the Retained Stock shall choose a person to act as Shareholders Representative under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:.
(iD) execute, as Neither the Shareholders’ Representative, Shareholders Representative nor any agent employed by him shall be liable to any Shareholder relating to the performance of his duties under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and any agreement convincing evidence that the actions taken or instrument entered into not taken by the Shareholders Representative constituted fraud or delivered were taken or not taken in bad faith. The Shareholders Representative shall be indemnified and held harmless by the Shareholders against all costs, expenses and damages paid or incurred in connection with any action, suit, proceeding or claim to which the Merger and Shareholders Representative is made a party by reason of the transactions contemplated by fact that he was acting as the Shareholders Representative pursuant to this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are Shareholders Representative shall not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, be entitled to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except indemnification hereunder to the extent it is finally determined in a court of competent jurisdiction by clear and convincing evidence that this Agreement the actions taken or such other agreement not taken by the Shareholders Representative constituted fraud or instrument expressly contemplates that any such notice were taken or communication not taken in bad faith. The Shareholders Representative shall be given protected in acting upon any notice, statement or received certificate believed by each Participating Equity Holder individually);
(iv) him to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders be genuine and to enforce and protect have been furnished by the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof appropriate person and in the manner provided herein;
(x) take all actions necessary acting or appropriate refusing to act in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of good faith on any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinmatter.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Recapitalization Agreement (Diamond Brands Operating Corp)
Shareholders’ Representative. (a) From and after By execution of this Agreement, each Shareholder hereby irrevocably appoints Lincoln ▇▇▇▇▇▇▇ (the Closing“Shareholders Representative”) as such Shareholder’s representative, the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and agent, with full power of substitution to act in the name, place and stead of such Shareholder with respect to the transfer of such Shareholder’s Shares to the Purchaser in accordance with the terms and provisions of this Agreement and to act on behalf of each such Shareholder in any amendment of or litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents or take any actions, as such Shareholder shall deem necessary or appropriate in conjunction with any of the Participating Equity Holders as Transactions contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, including the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders topower:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement to take all action necessary or instrument entered into or delivered desirable in connection with the Merger and waiver of any condition to the transactions obligations of the Shareholders to consummate the Transactions contemplated by this Agreement;
(ii) to negotiate, execute and deliver all ancillary agreements, statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests consummation of the Participating Equity Holders are not altered in a manner not Transactions contemplated by this AgreementAgreement (it being understood that such Shareholder shall execute and deliver any such documents which the Shareholders Representative agrees to execute), whether required before or after the Paying Agent Agreement or the Escrow AgreementClosing Date;
(iii) to give and receive all notices permitted and communications to be given or required received under this Agreement and to receive service of process in connection with the any claims under this Agreement, or any other agreement or document entered into or executed including service of process in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);with arbitration; and
(iv) to use reasonable efforts to enforce and protect take all actions which under this Agreement may be taken by the rights and interests of the Participating Equity Holders Shareholders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of do or under refrain from doing any further act or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment deed on behalf of the Participating Equity Holders Shareholder which the Shareholders Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement, whether arising prior to, on or after the Closing Date, as fully and completely as such Shareholder could do if personally present.
(b) The appointment of the Shareholders Representative hereunder is coupled with an interest and is irrevocable until such time as the Purchase Price due and payable pursuant to the terms of this Agreement;Agreement has been paid in full and all claims asserted by, and disputes with, the Purchaser have been finally satisfied, waived or otherwise resolved or the time for bringing any such claims has expired.
(viic) consent The Purchaser shall not have any obligation to take any action sought by, or agree torespond to any communication from, negotiateany of the Shareholders except as communicated by the Shareholders Representative. The provisions of this Section 10.2 shall in no way impose any obligations on the Purchaser. In particular, enter intonotwithstanding any notice received by the Purchaser to the contrary, prosecute or defendthe Purchaser (i) shall be fully protected in relying upon, settlements and compromises ofshall be entitled to rely upon, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators shall have no liability to the Shareholders with respect to, such claimsactions, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, decisions and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion determinations of the Shareholders’ Shareholders Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on assume that all actions, decisions and determinations of the Shareholders Representative are fully authorized by all of the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiiid) In connection with Notwithstanding anything contained in this Agreement to the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative forcontrary, any third-party expenses pursuant Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the Shareholders under this Agreement, including claims for indemnification under Article VIII, may be asserted, brought, prosecuted or maintained only by the Shareholders Representative, and the Shareholders hereby irrevocably waive any indemnification obligations pursuant right to enforce such rights in their own name. The Shareholders consent and agree that any Action, whether in Law or equity, to enforce any right, benefit or remedy granted to the Purchaser under this Agreement. The Shareholders’ , including claims for indemnification under Article VIII, may be asserted, brought, prosecuted or maintained by the Purchaser against the Shareholders by service of process on the Shareholders Representative will not be liable for any loss and without the necessity of principal of the Expense Fund other than serving process on, or otherwise joining or naming as a result of its gross negligencedefendant in such Action, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties. For this purpose, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material each Shareholder hereby irrevocably stipulates and (ii) the type agrees that the Registrant treats as private Shareholders Representative is a proper party defendant to represent its interests in any such proceeding and to appear on its behalf for all purposes therein, and that service of process upon the Shareholders Representative shall be effective to bind such Shareholders for all purposes of any such proceeding. Each Shareholder hereby irrevocably waives any and all rights it may have to object to jurisdiction or confidentialvenue in any proceeding in which service of process is served upon the Shareholders Representative on such Shareholder’s behalf. With respect to any of the foregoing, the Shareholders shall be bound by any determination in favor of or against the Shareholders Representative or the terms of any settlement or release to which the Shareholders Representative shall become a party, including any confession of judgment or other stipulation or settlement granted or entered into by the Shareholders Representative on their behalf.
Appears in 1 contract
Shareholders’ Representative. (a) From In addition to the other rights and after the Closing, authority granted to the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by elsewhere in this Agreement and otherwise bind all of except as expressly provided herein, by participating in the Participating Equity Holders for the purposes execution and delivery of this Agreement. The Participating Equity Holders shall be bound by all actions taken Agreement and documents executed by receiving the Shareholders’ Representativebenefits thereof, and Parent Group and other Indemnified Parties shall be entitled including the right to rely exclusively on any action or decision of receive the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders consideration payable in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitrationeach Company Shareholder (which, settlement for the purpose of this Section 12.11, shall also mean each MKD BVI Shareholder) hereby irrevocably authorizes and appoints M▇▇▇-▇▇▇▇ ▇▇▇▇▇ as agent, attorney-in-fact and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or otherwiserelating to the transactions contemplated hereby, with full power of substitution to act in the name, place and stead of such Company Shareholder and to act on behalf of such Company Shareholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and take or forego any or to execute all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of such documents, as the Shareholders’ Representative for the accomplishment shall determine to be necessary or appropriate in conjunction with any of the foregoing transactions contemplated by this Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Shareholder. Except as expressly provided herein, no Company Shareholder shall directly have the right to exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of the other termsCompany Shareholders. Without limiting the generality of the foregoing, conditions the Shareholders’ Representative has full power and authority, on behalf of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-Keach Company Shareholder and such Company Shareholder’s successors and assigns, Item 601(b)(10). Such excluded information is both to: (i) not material interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Shareholders in connection herewith, (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counselexecute and deliver and receive deliveries of all agreements, independent public accountants certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other experts selected by it, solely at documents required or permitted to be given in connection with the cost and expense consummation of the Participating Equity Holders;
transactions contemplated by this Agreement, (ixiii) consent or receive service of process in connection with any claims under this Agreement, (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and defend claims for indemnification under ARTICLE XI and comply with orders of courts with respect to any amendment such claims, and to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, (v) give and receive notices and communications, (viii) assert the attorney-client privilege on behalf of the Company Shareholders with respect to any communications that relate in each case any way to the transactions contemplated hereby, (ix) deliver to SPAC any and all Ancillary Agreements executed by the Company Shareholders and deposited with the Shareholders’ Representative, upon the Shareholders’ Representative’s determination that the conditions to Closing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement.
(b) Service by the Shareholders’ Representative shall be without having compensation except for the reimbursement by the Company Shareholders of out-of-pocket expenses and indemnification specifically provided herein.
(c) Notwithstanding Section 12.11(a), if the Shareholders’ Representative believes that he or she requires further authorization or advice from any Company Shareholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Shareholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Shareholder.
(d) From and after the date hereof, but except as expressly provided herein, each of SPAC and the Company is entitled to deal exclusively with the Shareholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or obtain instruction of the Shareholders’ Representative constitutes a decision of all the Company Shareholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Shareholder, and each of SPAC and the Company 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 Company Shareholder by the Shareholders’ Representative, and on any other decision, act, consent or instruction taken or purported to be taken on behalf of any Company Shareholder by the Shareholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each Company Shareholder.
(e) The Shareholders’ Representative may resign at any time, and may appoint a new Shareholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of any Person under any circumstancethe Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof; provided, however, in no event shall the Shareholders’ Representative be removed without the Company Shareholders holding a majority of the Company Ordinary Shares having first appointed a new Shareholders’ Representative who shall assume such duties immediately upon the removal of the Shareholders’ Representative. Parent Group In the event of the death, incapacity, or removal of the Shareholders’ Representative, a new Shareholders’ Representative shall be appointed by the vote or written consent of the Company Shareholders holding a majority of the Company Ordinary Shares as of the date hereof and their respective Affiliates (including after a copy of the Effective Timewritten consent or minutes appointing such new Shareholders’ Representative shall be sent to SPAC, such appointment to be effective upon the Surviving Corporation) later of the date indicated in such consent or the date such notice is received by SPAC; provided that until such notice is received, SPAC and the Company shall be entitled to rely on the decisions and actions of the prior Shareholders’ Representative as described in this Section 12.11.
(f) The Shareholders’ Representative shall hold and treat be entitled to use the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the dutiesFund, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereofdefined below, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyfor, or reimbursing the Shareholders’ Representative for, any third-party and all costs and expenses pursuant (including counsel and legal fees and expenses) incurred by the Shareholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Shareholders’ Representative Expenses”). The Shareholders’ Representative shall hold the Shareholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds (the “Representative Fund”. At such time as the Shareholders’ Representative deems appropriate, the Shareholders’ Representative shall distribute to this Agreement, any indemnification obligations pursuant to this Agreementthe Company Shareholders (in accordance with their respective Pro Rata Portion) the remaining Shareholders’ Representative Fund. The Shareholders’ Representative will be promptly reimbursed by the Company Shareholders (based on their respective Pro Rata Portion) for Shareholders’ Representative Expenses not covered by the Shareholders’ Representative Fund upon demand.
(g) The Company Shareholders, severally and not jointly (based on their Pro Rata Portion), agree to indemnify and hold harmless the Shareholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be liable for any loss of principal of the Expense Fund other than subject to as a result of its gross negligencehis duties hereunder or any of his actions or inactions as such, except as may result from the Shareholders’ Representative’s actions that would constitute fraud or willful misconduct misconduct.
(h) The Shareholders’ Representative shall have no duties or fraudresponsibilities except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any Company Shareholder shall otherwise exist against the Shareholders’ Representative. The Shareholders’ Representative will hold these funds separate from its own funds, will shall not use these funds for its operating expenses or be liable to any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed Company Shareholder relating to the Participating Equity Holders promptly following the completion performance of the Shareholders’ Representative’s dutiesduties or exercise of any rights under this Agreement for any errors in judgment, negligence, oversight, breach of duty or at such earlier time 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 actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall be indemnified and held harmless by the Company Shareholders 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 may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-Kthis Agreement; provided, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type however, that the Registrant treats 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 convincing evidence that the actions taken or not taken by the Shareholders’ Representative constituted actual fraud or were taken or not taken in bad faith. The Shareholders’ Representative shall 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 appropriate Person and in acting or refusing to act in good faith on any matter. The Shareholders’ Representative, solely in his capacity as private such, shall not be liable to SPAC or confidentialany Affiliate of SPAC by reason of this Agreement or the performance of the Shareholders’ Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Closing, the resignation or removal of the Shareholders’ Representative or the termination of this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Cetus Capital Acquisition Corp.)
Shareholders’ Representative. (a) From As an integral component of the conversion of the JX Shares pursuant to Article II, and after in order to facilitate the Closingconsummation of the Transactions contemplated hereby, PFire Escrow, Inc. is hereby irrevocably constituted and appointed, and each Company Indemnifying Party, by virtue of his, her or its receipt of any Per Share Consideration and, in connection therewith, the Shareholders’ Representative execution and delivery of the instrument provided for in Section 2.04(b) shall be authorized deemed to acthave irrevocably constituted and appointed and shall irrevocably constitute and appoint PFire Escrow, Inc., (and be by execution of this Agreement PFire Escrow, Inc. hereby accepts such appointment), as the Company Indemnified Parties’ agent and attorney-in-fact for and on behalf their behalf, with full power of substitution, to act in the name, place and stead of each of Company Indemnifying Party (the Participating Equity Holders as contemplated by “Shareholders’ Representative”) with respect to this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed taking by the Shareholders’ Representative, Representative of any and Parent Group all actions and other Indemnified Parties shall the making of any decisions required or permitted to be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as taken by the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationunder this Agreement or the Escrow Agreement, including the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each exercise of the Participating Equity Holders in connection with power to: (i) execute any amendment or waiver of this Agreement or the activities to be performed on behalf of the Participating Equity Holders under this Escrow Agreement, and execute and deliver any other document or instrument necessary or advisable in order to carry out the Paying Agent provisions of this Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required and communications under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
for indemnification made by Parent under this Article VIII; (viiv) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect toto any dispute arising or claims for indemnification made by Parent under this Agreement; (v) receive the Shareholders’ Representative Fund Amount, to hold such claimsfunds, resolve together with any funds otherwise distributable for the account of the Company Indemnifying Parties from the Escrow Agreement that the Shareholders’ Representative determines in its discretion may be needed to pay Shareholders’ Representative Costs and directs be transferred to the Shareholders’ Representative as provided in the Escrow Agreement (collectively, the “Shareholders’ Representative’s Fund”) in a separate account solely within the Shareholders’ Representative’s control and which need not be interest bearing, and to use the amounts in the Shareholders’ Representative’s Fund in furtherance of its duties as Shareholders’ Representative as it may determine in its good faith discretion; provided, however that following the conclusion of its services as Shareholders’ Representative hereunder, any balance of the Shareholders’ Representative Fund not incurred for such purposes shall be returned to the Company Indemnifying Parties in proportion to their respective Pro Rata Portion of the Escrow Account in such manner that the Shareholders’ Representative and Company may prior to the Closing agree in writing, provided further that at any such claimstime as the Shareholders’ Representative shall determine in its discretion that the amounts in the Shareholders’ Representative’s Fund exceed amounts that may be needed for Shareholders’ Representative’s Costs, take any actions in connection with the resolution of any dispute relating hereto or Shareholders’ Representative may return such excess to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, Company Indemnifying Parties in such agreed manner; and (vi) take or forego any or all actions permitted necessary or required of any Participating Equity Holder or necessary appropriate in the sole discretion good faith judgment of the Shareholders’ Representative for the accomplishment of the foregoing and all foregoing. Notwithstanding the foregoing, the Shareholders’ Representative shall not be authorized to agree to any amendment or modification of this Agreement that would have the effect of increasing the obligations of a Company Indemnifying Party provided for hereunder without the prior written consent of such Company Indemnifying Party, provided that any amendment or modification that provides for increased obligations to be satisfied solely out of the other termsEscrow Account, conditions Shareholders’ Representative Fund, or both would not require such approval. The power of this Agreement; [***] Certain information attorney granted in this document has been excluded pursuant Section 8.09 by Company Indemnifying Parties to Regulation S-Kthe Shareholders’ Representative is coupled with an interest and is irrevocable, Item 601(b)(10may be delegated by the Shareholders’ Representative in whole or in part to any one or more third persons selected by the Shareholders’ Representative (who may be paid such compensation from the Shareholders’ Representative’s Fund as the Shareholders’ Representative may determine in its discretion) and shall survive the death or incapacity of any Company Indemnifying Party. The identity of the Shareholders’ Representative and the terms of the agency may be changed, and a successor Shareholders’ Representative may be appointed, from time to time by the Company Indemnifying Parties whose aggregate Pro Rata Portions of the Escrow Account exceed 50%. Further, the Shareholders’ Representative may resign at any time on 30 days notice to Parent and the Company Indemnifying Parties; if the Company Indemnifying Parties do not designate a successor by action of Company Indemnifying Parties whose aggregate Pro Rata Portions of the Escrow Account exceed 50% prior to the end of such period, the resigning Shareholders’ Representative shall be entitled to do so. Any successor to the Shareholders’ Representative shall succeed the former Shareholders’ Representative as Shareholders’ Representative hereunder. No bond shall be required of the Shareholders’ Representative or any person delegated any of the Shareholders’ Representative’s rights or duties (“Delegees”). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viiib) The Shareholders’ Representative shall promptly provide written notice to the Company Indemnifying Parties of any material action taken on their behalf by the Shareholders’ Representative pursuant to the authority delegated to the Shareholders’ Representative under this Section 8.09. The Shareholders’ Representative shall at all times act in its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interests of the Company Indemnifying Parties. Neither the Shareholders’ Representative, nor any of its affiliates or Delegees, nor any of the directors, officers, partners, members, agents or employees, if any, of the foregoing, 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 fraud or willful misconduct. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it, solely it at the cost and sole expense of the Participating Equity Holders;
(ix) consent Shareholders’ Representative’s Fund and shall not be liable for any action taken or agree omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Shareholders’ Representative shall not have any amendment duty to this Agreement ascertain or to waive inquire as to the performance or observance of any terms and of the terms, covenants or conditions of this Agreement providing rights or benefits the Escrow Agreement. As to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority matters not expressly provided for in this Section 11.14(a);
(xi) withhold from any cash payment Agreement or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have not exercise any discretion or take any action.
(c) It shall be a condition of each Company Indemnifying Party’s right to receive any portion of the right at Net Merger Consideration or any other payment or benefit hereunder that such person execute a document in which such person shall, in accordance with their Pro Rata Portion and up to the Company Indemnified Party’s portion of Net Merger Consideration received or deemed received by such person, indemnify and defend the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any Loss, damage, cost, Liability or expense incurred without fraud or willful misconduct by the Shareholders’ Representative and arising out of or in connection with the acceptance, performance or administration of the Shareholders’ Representative’s duties under this Agreement or the Escrow Agreement. The Shareholders’ Representative shall not be entitled to a profit for its services in that capacity, but shall be entitled to reimbursement for any and all costs of providing such services, including the internal cost of the time of its internal legal department and from time to time to select other internal costs, all as determined by the Shareholders’ Representative in its discretion. Any such costs and engage attorneysany and all other Liabilities, accountantsLosses, investment bankerspenalties, advisorsfines, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)claims, and maintain such recordsdamages, as reasonably necessary or desirable, and incur other reasonable out-of-of pocket expenses. The fees and costs or expenses of such advisors shall constitute expenses incurred by or reasonably expected to be incurred by the Shareholders’ Representative in connection with the acceptance, performance and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes administration of paying directly, or reimbursing its duties as the Shareholders’ Representative for, any third-party expenses pursuant to this AgreementAgreement (including the hiring of Delegees, any indemnification obligations legal counsel, accountants or auditors and other advisors pursuant to the terms of this Agreement. The Agreement but excluding any of the foregoing arising out to the Shareholders’ Representative’s fraud or willful misconduct) (“Shareholders’ Representative’s Costs”), shall be paid first, by recourse to the Shareholders’ Representatives’ Fund, and if such amounts are insufficient to pay such Shareholders’ Representative’s Costs, directly by the Company Indemnifying Parties in proportion to their respective Pro Rata Portion of the Escrow Account up to the Company Indemnified Party’s portion of Net Merger Consideration received or deemed received by such person.
(d) In all matters relating to Article VIII, the Shareholders’ Representative will not shall be liable for any loss of principal the only party entitled to assert the rights of the Expense Fund other than as a result of its gross negligenceCompany Indemnifying Parties. All decisions, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes actions and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion instructions of the Shareholders’ Representative’s duties, or at such earlier time as including any agreement between the Shareholders’ Representative and Parent relating to the defense or settlement of any claims for which the Company Indemnifying Parties may determine be required to indemnify any of the Parent Indemnified Parties pursuant to this Article VIII, shall be conclusive and binding upon all of the Company Indemnifying Parties, and no Company Indemnifying Party shall have the right to object, dissent, protest or otherwise contest the same, except for fraud or willful misconduct by the Shareholders’ Representative in its sole discretion. [***] Certain information connection with the matters described in this document has been excluded Section 8.09. Parent and the Escrow Agent shall be entitled to rely conclusively on the instructions and decisions of the Shareholders’ Representative as to the determination of the Net Merger Consideration, or the settlement of any claims for indemnification by any of the Indemnitees pursuant to Regulation S-KArticle VIII hereof, Item 601(b)(10or any other actions required or permitted to be taken by the Shareholders’ Representative hereunder or under the Escrow Agreement, and no Company Indemnifying Party hereunder shall have any cause of action against Parent or the Escrow Agent for any action taken by Parent in reliance upon the instructions or decisions of the Shareholders’ Representative.
(e) The Shareholders’ Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance of Surviving Corporation’s executive officers for purposes of performing its duties and exercising its rights hereunder; provided that the Shareholders’ Representative shall treat confidentially and not disclose any nonpublic information from or about Surviving Corporation or the Parent to anyone (except on a need to know basis to individuals who agree in writing to treat such information confidentially). Such excluded information is both ; provided, further, that such access and assistance shall not interfere with or adversely affect the Surviving Corporation’s business.
(f) The provisions of this Section 8.09 (i) not material are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnifying Party may have in connection with the Transactions; and (ii) shall be binding upon the type that executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Company Indemnifying Party, and any references in this Agreement to a Company Indemnifying Party shall mean and include the Registrant treats as private successors to the Company Indemnifying Party’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or confidentialotherwise.
Appears in 1 contract
Shareholders’ Representative. (a) From By the execution and after delivery of a Letter of Transmittal, including counterparts hereof, each Equity Holder hereby irrevocably constitutes and appoints a committee consisting of a designee of KRG and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as the Closing, the Shareholders’ Representative shall be authorized to act, true and be the lawful agent and attorney-in-fact for (the “Shareholder Representative”) of such Equity Holder with full powers of substitution to act in the name, place and stead of such Equity Holder with respect to the performance on behalf of each of such Equity Holder under the Participating Equity Holders as contemplated by this Agreement terms and otherwise bind provisions hereof and to do or refrain from doing all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken such further acts and documents executed by the Shareholders’ Representativethings, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving execute all such documents, as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Shareholder Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders deem necessary or appropriate in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreementany transaction contemplated hereunder, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, including the power and authority on behalf of the Participating Equity Holders to:
(i) executeact for such Equity Holder, as if applicable, with respect to all indemnification matters referred to herein, including the Shareholders’ Representative, this Agreement and right to compromise or settle any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreementsuch claim on behalf of such Equity Holder;
(ii) execute and deliver act for such Equity Holder with respect to the Paying Agent Agreement General Escrow Amount and the Intellectual Property Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow AgreementAmount;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, act for and on behalf of any Participating such Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except Holder with respect to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually)Viastar Matter and the Viastar Funding Amount;
(iv) amend or waive any provision hereof (including any condition to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or Closing) in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute that does not differentiate among any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing ProceedingsEquity Holder;
(v) object to such claims pursuant to Section 9.2 employ, obtain and Section 9.3rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative;
(vi) pay the cost act for such Equity Holder with respect to all Merger Consideration matters and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant all Merger Consideration adjustment matters referred to the terms of this Agreementherein;
(vii) consent incur any expenses, liquidate and withhold assets received on behalf of such Equity Holder prior to their distribution to such Equity Holder to the extent of any amount that the Shareholder Representative deems necessary for payment of or agree to, negotiate, enter into, prosecute or defend, settlements and compromises ofas a reserve against expenses, and demand arbitration pay such expenses or deposit the same in an interest-bearing bank account established for such purpose;
(viii) receive all notices, communications and comply with Orders deliveries hereunder on behalf of Governmental Authorities such Equity Holder; and
(ix) do or awards refrain from doing any further act or deed on behalf of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder that the Shareholder Representative deems necessary or necessary appropriate, in the sole discretion of the Shareholders’ Representative for Shareholder Representative, relating to the accomplishment of subject matter hereof as fully and completely as such Equity Holder could do if personally present and acting and as though any reference to such Shareholder herein was a reference to the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialShareholder Representative.
(viiib) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense The appointment of the Participating Equity Holders;
(ix) consent or agree to Shareholder Representative shall be deemed coupled with an interest and shall be irrevocable, and any amendment to this Agreement or to waive other Person may conclusively and absolutely rely, without inquiry, upon any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment action of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Shareholder Representative as the duly appointed attorney-in-fact act of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution all matters referred to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinherein.
(xiiic) In connection with the performance of its obligations hereunder and under event the Paying Agent Agreement and Shareholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the Escrow Agreement, the Shareholders’ successor Shareholder Representative shall have be the right at any time Person that KRG and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses▇▇▇▇ ▇. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential▇▇▇▇▇▇▇▇▇▇▇ appoint.
Appears in 1 contract
Shareholders’ Representative. (a) From Each EAI Shareholder constitutes and after appoints J▇▇▇ ▇▇▇▇▇▇ (the Closing“Shareholders’ Representative”) as its representative and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:
(i) to act on such EAI Shareholder’s behalf in the absolute discretion of Shareholders’ Representative shall be authorized with respect to actall matters relating to this Closing Agreement, including execution and be the agent and attorney-in-fact for and on behalf delivery of each any amendment, supplement, or modification of the Participating Equity Holders as contemplated by this Closing Agreement and otherwise bind all any waiver of the Participating Equity Holders for the purposes any claim or right arising out of this Agreement. The Participating Equity Holders shall be bound by all actions taken Closing Agreement and to execute and deliver any other documents executed by as required, in the determination of the Shareholders’ Representative, to effect the provisions herein;
(ii) to execute and Parent Group deliver the Lock-Up Agreement to be delivered by each such EAI Shareholder, and other Indemnified Parties shall thereafter to undertake, agree to, execute and deliver any amendments to such Lock-Up Agreement as determined to be entitled to rely exclusively on any action or decision necessary in the discretion of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;and
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holdergeneral, to or from Parent Group (on behalf of itself or any do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions, and other Indemnified Party) relating to this Agreement, the Merger and any other matters instruments contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly deemed advisable by the Shareholders’ Representative in connection with its obligations hereunder or relating to effectuate the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution provisions of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests thereinthis Section 6.09.
(xiiib) In connection This appointment and grant of power and authority is coupled with an interest and is in consideration of the performance of its obligations hereunder and under the Paying Agent mutual covenants made in this Closing Agreement and is irrevocable and will not be terminated by any act of any EAI Shareholder or by operation of Law, whether by the Escrow Agreement, death or incapacity of any EAI Shareholder or by the occurrence of any other event. Each EAI Shareholder hereby consents to the taking of any and all actions and the making of any decisions required or permitted to be taken or made by Shareholders’ Representative pursuant to this Section 6.09. Each EAI Shareholder agrees that Shareholders’ Representative shall have the right at no obligation or liability to any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, Person for any action taken or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred omitted by the Shareholders’ Representative in good faith, even if taken or omitted negligently, and each EAI Shareholder shall indemnify and hold harmless Shareholders’ Representative from, and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for pay to Shareholders’ Representative the purposes of paying directlyamount of, or reimbursing the reimburse Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Loss that Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than may suffer, sustain, or become subject to as a result of its gross negligence, willful misconduct any claim made or fraud. The threatened against Shareholders’ Representative will hold these funds separate from its own fundsin his capacity as such.
(c) The Company shall be entitled to rely upon any document or other paper delivered by Shareholders’ Representative as being authorized by EAI Shareholders and each EAI Shareholder, will and the Company shall not use these funds be liable to any EAI Shareholder for its operating expenses any action taken or any other corporate purposes and will not voluntarily make these funds available omitted to its creditors be taken by the Company based on such reliance.
(d) Until all obligations under this Closing Agreement shall have been discharged, EAI Shareholders who, immediately prior to the Closing, are entitled in the event aggregate to receive more than fifty percent (50%) of bankruptcy. For tax purposesthe Exchange Shares, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the may, from time of Closing. Any funds remaining in the Expense Fund shall be distributed to time upon notice to the Participating Equity Holders promptly following Company, appoint a new Shareholders’ Representative upon the completion death, incapacity, or resignation of the Shareholders’ Representative’s duties. If, after the death, incapacity, or at such earlier time as the resignation of Shareholders’ Representative, a successor Shareholders’ Representative shall not have been appointed by EAI Shareholders within fifteen (15) Business Days after a request by the Company, the Company may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant appoint a Shareholders’ Representative from among the EAI Shareholders to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialfill any vacancy so created by notice of such appointment to EAI Shareholders.
Appears in 1 contract
Sources: Closing Share Exchange Agreement (Recall Studios, Inc.)
Shareholders’ Representative. (a) From and after the ClosingThe Shareholders, by executing this Agreement, hereby irrevocably appoint the Shareholders’ Representative shall be authorized to act, and be the as their agent and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement Section 9 and the Escrow Agreement, for and consent to the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as taking by the Shareholders’ Representative, this Agreement Representative of any and any agreement or instrument entered into or delivered in connection with the Merger all actions and the transactions contemplated making of any decisions required or permitted to be taken by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and it under the Escrow Agreement and to agree to such amendments or modifications thereto as (including, without limitation, the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests exercise of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, power to or from authorize delivery to Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement Indemnity Escrow Amount and the transactions contemplated hereby andSpecial Taxes Escrow Amount in satisfaction of claims by Parent, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, of and demand arbitration arbitration, and comply with Orders orders of Governmental Authorities or courts and awards of arbitrators with respect to, to such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded claim made pursuant to Regulation S-K, Item 601(b)(10Section 9). Such excluded information is both (i) not material ; and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain . ▇▇▇▇ ▇▇▇▇▇ & Associates Ltd. hereby accepts its appointment as the consent Shareholders’ Representative for purposes of any Person under any circumstanceSection 9 and the Escrow Agreement. Parent Group shall be entitled to deal exclusively with the Shareholders’ Representative on all matters relating to Section 9 and their respective Affiliates (including after the Effective TimeEscrow Agreement, the Surviving Corporation) 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 Shareholders’ Representative, and on any other action taken or purported to be taken on behalf of any Shareholder by the Shareholders’ Representative, as fully binding upon such Shareholder. Without limiting the generality of the foregoing, any decision, act, consent or instruction of the Shareholders’ Representative, including an amendment, extension or waiver of any provision of this Agreement, shall constitute a decision of the Shareholders and shall be final, binding and conclusive upon the Shareholders. Each of Parent and Purchaser is hereby relieved from any liability to any person for any acts done by it in accordance with such decision, act, consent or instruction of the Shareholders’ Representative.
(b) If the Shareholders’ Representative shall be unable to fulfill its responsibilities as agent of the Shareholders, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall, within 10 days after such determination, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Shareholders’ Representative” for purposes of Section 9, the Escrow Agreement and treat this Section 10.1.
(c) The Shareholders’ Representative shall not be liable for any act done or omitted hereunder as Shareholders’ Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders shall severally indemnify each Shareholders’ Representative and hold each Shareholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by such Shareholders’ Representative.
(d) The Shareholders’ Representative shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof, and the Shareholders’ Representative as shall not be responsible for the duly appointed attorney-in-fact validity or sufficiency of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) Agreement. In connection with the performance of its obligations hereunder and all questions arising under the Paying Agent Agreement and the Escrow this Agreement, the Shareholders’ Representative shall have may rely on the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary)advice of counsel, and maintain such recordsfor anything done, as reasonably necessary omitted or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred suffered in good faith by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlybased on such advice, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will shall not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialanyone.
Appears in 1 contract
Shareholders’ Representative. (a) From Each of the Shareholders hereby irrevocably makes, constitutes and after the Closing, the Shareholders’ Representative shall be authorized to act, appoints Scott A. Schuster as his agent and be the agent ▇▇▇▇▇▇entative and attorney-in-fact (the "Shareholders' Representative") for and all purposes under this Agreement. Each Shareholder hereby authorizes the Shareholders' Representative, on behalf and in the name of each 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 the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of legal process in connection with any suit or other proceeding arising under this Agreement. The Participating Equity Holders Shareholders' 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 bound delivered to Phoenix by all actions taken the Shareholders pursuant to this Agreement, together with any other certificates and documents executed by each Shareholder and deposited with the Shareholders’ Representative' Representative for such purpose;
(e) Engage such legal counsel, and Parent Group such accountants and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with advisors for Shareholders and incur such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, other expenses on behalf of each of the Participating Equity Holders Shareholders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to 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 connection therewith, to respect of:
(i) assert Waiving any inaccuracies in the representations or institute warranties of Phoenix contained in this Agreement or in any Proceeding or make any indemnification claims; document delivered by it pursuant hereto;
(ii) settle or compromise Waiving the fulfillment of any Proceeding relating of the conditions precedent to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and Shareholders' obligations hereunder;
(iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object Taking such other action as he is authorized to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of take under this Agreement;
(viiiv) consent Receiving all documents or agree to, negotiate, enter into, prosecute or defend, settlements certificates and compromises of, and demand arbitration and comply with Orders making all determinations on behalf of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by Shareholders required under this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xiiv) enforce payment and distribution of any amounts payable All such other matters as the Shareholders' Representative may deem necessary or appropriate to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent consummate this Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expensestransactions contemplated hereby. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion appointment of the Shareholders’ Representative’s duties, ' Representative hereunder is irrevocable and is deemed coupled with an interest 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 at such earlier time as direction from a Shareholder. The death or incapacity of any Shareholder shall not terminate the prior authority and agency of the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential' Representative.
Appears in 1 contract
Sources: Share Exchange Agreement (Phoenix International Industries Inc /Fl/)
Shareholders’ Representative. (a) From By executing this Agreement, each Shareholder irrevocably constitutes and after appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Closing, the Shareholders’ Representative shall be authorized to act, true and be the lawful agent and attorney-in-fact for and on behalf (hereinafter referred to as the "SHAREHOLDERS' REPRESENTATIVE") of each Shareholder, with full powers of substitution, to act in the Participating Equity Holders as name, place and stead of each Shareholder with respect to the transactions contemplated by this Agreement and otherwise bind all of hereby in accordance with the Participating Equity Holders for the purposes provisions of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall includeincluding, the power and authority without limitation, to grant waivers on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, each Shareholder or to enter into amendments to this Agreement and any agreement to do or instrument entered into or delivered in connection with the Merger refrain from doing all such further acts and the transactions contemplated by this Agreement;
(ii) things, to execute all such certificates, instruments and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to other documents, as such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, ' Representative may deem necessary or desirable; provided, however, that the relative interests appropriate in connection with any of the Participating Equity Holders are not altered in a manner not transactions contemplated by under this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) , to give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holdercommunications, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating authorize delivery to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests Purchaser of the Participating Equity Holders and to enforce and protect Escrowed Shares or other property from the rights and interests Escrow Account in satisfaction of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewithclaims by Purchaser, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant deliveries, to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration and comply with Orders orders of Governmental Authorities or courts and awards of arbitrators with respect to, to such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or claims and to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall Such agency may be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly changed by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and Shareholder from time to time upon not less than thirty days prior written notice to select Purchaser; PROVIDED, HOWEVER, that the Shareholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Account agree to such removal and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (to the identity of the substituted shareholders' representative. Any vacancy in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expensesthe position of Shareholders' Representative may be filled by approval of the holders of a majority in interest of the Escrow Account. The fees Shareholders agree that any such action, if material to the rights and expenses obligations of such advisors shall constitute expenses incurred by the Shareholders in the reasonable judgment of the Shareholders’ ' Representative, shall be taken in the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. The appointment of the Shareholders' Representative shall be deemed coupled with an interest and shall be reimbursed in accordance with this Section 11.14(a)(xiii) irrevocable, and Section 11.14(b). The Expense Fund will be used for the purposes Purchaser, Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of paying directly, or reimbursing the Shareholders’ ' Representative for, any third-party expenses pursuant as the act of the Shareholders in all matters referred to this Agreement, any indemnification obligations pursuant to in this Agreement. The Shareholders’ ' Representative will shall not be liable for any loss act done or omitted hereunder as Shareholders' Representative while acting in good faith and in the exercise of principal reasonable judgment.
(b) The power of attorney granted in this section is not intended to be a continuing power of attorney within the Expense Fund meaning of and governed by the Substitute Decisions Act (Ontario) or any similar power of attorney under equivalent legislation in any other jurisdiction (a "CPOA"). The execution of this Agreement shall not terminate any such CPOA granted by any Shareholder previously and shall not be terminated by the execution by that Shareholder in the future of a CPOA, and each Shareholder hereby agrees not to take any action in the future (other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own 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 expressly permitted by this section) which results in the event termination of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time this power of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialattorney.
Appears in 1 contract
Sources: Share Purchase Agreement (Ticketmaster Online Citysearch Inc)
Shareholders’ Representative. Each Shareholder hereby irrevocably appoints A▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (a) From and after the Closing, the “Shareholders’ Representative shall be authorized to act, and be Representative”) as the agent and attorney-in-fact of such Shareholder for and on behalf of each of the Participating Equity Holders as all purposes relating to or in connection with any transaction contemplated by or relating to this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of carried out prior to, at or after the Participating Equity Holders under Closing including (i) approving any modifications or amendments to this Agreement, (ii) making decision with respect to the Paying determination of the Net Working Capital Adjustment Amount, (iii) the appointment of the Escrow Agent Agreement and execution and delivery of the Escrow Agreement, for (iv) entering into any settlement or submitting the purposes and with dispute to the powers and authority hereinafter set forth which shall includeIndependent Accountant, the power and authority on behalf of the Participating Equity Holders to:
(iv) executetaking any action that may be necessary or desirable, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated determined by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewithwith the termination of this Agreement as provided in Article XII, for (vi) delivering or causing to be delivered to the Purchaser at the Closing certificates representing the Company Shares, (vii) executing and delivering, on behalf of the Shareholders and the Companies any Participating Equity Holderand all notices, documents or certificates to be executed by the Shareholders or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or Companies in any manner relating to connection with this Agreement and the transactions contemplated hereby and, hereby; (viii) making any payments or paying any expenses under or in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to with this Agreement, (ix) granting any consent or approval on behalf of the Paying Agent Agreement Shareholders or the Escrow Companies under this Agreement; and (iiix) file resolving disputes with the Purchaser that arise under this Agreement including disputes regarding indemnification claims by any Party. Each Shareholder herby appoints the Shareholders’ Representative as such Shareholder’s true and prosecute appeals from any judgment rendered lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in such Shareholder’s name, place and stead, in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree toall capacities, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed granting unto said attorney-in-fact of each Participating Equity Holder and as having the dutiesagent, full power and authority provided for to do and perform each and every act and thing requisite and necessary to be done in this Section 11.14(a);
(xi) withhold connection with the sale of such Shareholder’s shares as fully to all intents and purposes as such Shareholder might or could do in person. Each Shareholder hereby authorizes the Purchaser and its Affiliates to rely upon the agency created hereby and releases the Purchaser and its Affiliates from any cash payment and all liability to such Shareholder of whatever nature arising out of or distribution relating to such agency, to the Participating Equity Holders on and after the date hereof, the amount of same extent as though any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly act committed or indirectly omitted by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct such agency had been committed or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside omitted by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialShareholder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Omega Healthcare Investors Inc)
Shareholders’ Representative. (a) From and after By virtue of the Closingapproval of this Agreement by the shareholders of the Company, each Company Equity Holder hereby appoints DVT Holdings Limited to act as the Shareholders’ Representative shall be authorized to act, and be the agent and attorney-in-fact and agent for and on behalf of each of the Participating Company Equity Holders as contemplated by this Agreement (the "Shareholders' Representative") with respect to the taking of any and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions and the making of any decisions required or permitted to be taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ ' Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall includeincluding, without limitation, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) arbitrate, resolve, settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement dispute regarding indemnification claims or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms matters arising out of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material Agreement and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ ' Representative for the accomplishment of the foregoing, in each case without having . Notices to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on from the Shareholders’ ' Representative and treat shall constitute notice to or from each Company Equity Holder. A decision, act, consent or instruction of the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ ' Representative in connection with its obligations hereunder or relating to any of the transactions contemplated hereby to foregoing matters shall constitute a decision of all of the extent Company Equity Holders and shall be final, binding and conclusive upon each of the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Company Equity Holders, in each case to and Parent and the extent Surviving Corporation may rely upon any such written decision, consent or instruction of the Shareholders' Representative as being the decision, consent or instruction of each and every Company Equity Holder. The Escrow Agent, Parent and the Surviving Corporation are hereby relieved from any liability to any Person for the acts done by them in accordance with such decision, consent or instruction of the Participating Equity Holders’ respective interests therein.
(xiii) Shareholders' Representative. In connection with performing the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow functions specified in this Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ ' Representative will not be liable for to any loss Company Equity Holder in the absence of principal of the Expense Fund other than as a result of its gross negligence, fraud or willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own 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 on the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion part of the Shareholders’ ' Representative’s duties, and any act done or at such earlier time as omitted pursuant to the advice of counsel shall be conclusive evidence of the Shareholders’ ' Representative's good faith. If the Shareholders' Representative may determine in shall resign or become unable to fulfill its sole discretion. [***] Certain information in this document has been excluded pursuant duties as such, then the Shareholders' Representative shall be entitled to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material appoint its replacement and (ii) shall promptly notify the type that the Registrant treats as private or confidentialEscrow Agent and Parent of such appointment.
Appears in 1 contract
Sources: Merger Agreement (Cognex Corp)
Shareholders’ Representative. (a) From Effective upon and after by virtue of the Closingvote of the holders of Company Stock approving and adopting this Agreement and the Merger, and without any further act of any of the holders of the Company Stock, the Shareholders’ Representative shall be authorized to act, hereby appointed as the representative of the holders of Company Stock and be as the agent and attorney-in-fact and agent for and on behalf of each holder of Company Stock solely with respect to (i) any claims by any Parent Indemnified Party against the Participating Equity Holders as contemplated by Escrow Fund under Articles 2 and 10 of this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled (ii) any amendments to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests any amendment of the Participating Equity Holders are not altered in a manner not contemplated Escrow Agreement that shall adversely affect the rights or obligations of any shareholder under the Escrow Agreement (other than any change affecting all holders of Company Stock similarly) shall require the prior written consent of such adversely affected shareholder. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the authority to take any and all actions and make any decisions required or permitted to be taken by the Shareholders’ Representative under the Escrow Agreement and this Agreement, including the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests exercise of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, power to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration commence any suit, action or proceeding, and comply with Orders orders of Governmental Authorities or awards of arbitrators courts with respect to, such claims, resolve claims by any such claims, take any actions in connection with Parent Indemnified Party against the resolution Escrow Fund under Articles 2 and 10 of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type litigate, resolve, settle or compromise any dispute that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense may arise pursuant to Section 5 of the Participating Equity Holders;
Escrow Agreement, and (ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(xiii) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. 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, in settlement or other handling of all claims against the Escrow Fund under this Agreement and all related rights or obligations of the former shareholders of the Company arising under this Agreement. The Shareholders’ Representative will also have sole authority and power to act on behalf of each case without having former shareholder of the Company with respect to seek or obtain any amendments to the consent Escrow Agreement. The Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to the Shareholders’ Representative, to keep the former shareholders of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled Company reasonably informed with respect to rely on actions of the Shareholders’ Representative and treat pursuant to the authority granted the Shareholders’ Representative as under this Agreement. Each former shareholder of the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable Company shall promptly provide written notice to the Shareholders’ Representative and of any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or change of address of such shareholder.
(b) In all matters relating to the transactions contemplated hereby disposition, settlement or other handling of claims against the Escrow Fund under this Agreement or any amendments to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative (or his or her successor) shall be the only party entitled to assert the rights of the 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 shall be final, binding and conclusive upon each of such shareholders, and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Shareholders’ Representative as being the decision, act, consent or instruction of each and every such holder of Company Stock. The Escrow Agent and 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.
(c) The Shareholders’ Representative shall have the right at to recover from the Escrow Fund, prior to any time distribution to the holders of Company Stock (but after any disbursement from the Escrow Fund to the Escrow Agent pursuant to terms and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessaryconditions of the Escrow Agreement), and maintain such records, as reasonably necessary or desirable, and incur other the Shareholders’ Representative’s reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred in serving in that capacity (the “Shareholders’ Representative’s Expenses”). In the event the Escrow Property is insufficient to satisfy the Shareholders’ Representative’s Expenses, then each holder of Company Stock will be obligated to pay a percentage of the Shareholders’ Representative’s Expenses in excess of the Escrow Fund proportionate to that holder’s Escrow Holdback.
(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 other action or inaction, except his own gross negligence, bad faith or willful misconduct. In all questions arising under this Agreement or the Escrow Agreement, the Shareholders’ Representative may rely on the advice of outside counsel, and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Shareholders’ Representative based on such advice.
(e) The holders of Company Stock shall severally but not jointly indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against any loss of principal of the Expense Fund other than as a result of its loss, liability or expense incurred without gross negligence, bad faith or willful misconduct or fraud. The misconduct, to the extent permitted by applicable law, on the part of the Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses and arising out of or any other corporate purposes and will not voluntarily make these funds available to its creditors in connection with the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion acceptance or administration of the Shareholders’ Representative’s dutiesduties hereunder, or at such earlier including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative.
(f) At any time during the term of the Escrow Agreement, a majority-in-interest of holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative may determine in its sole discretionRepresentative. [***] Certain information in this document has been excluded pursuant Notice together with a copy of 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 Regulation S-K, Item 601(b)(10)Parent and the Escrow Agent not less than ten (10) calendar days prior to such appointment. Such excluded information appointment will be effective upon the later of the date indicated in the consent or the date such consent is both received by Parent and the Escrow Agent.
(ig) not material and (ii) In the type event that the Registrant treats Shareholders’ Representative becomes unable or unwilling to continue in his or its capacity as private Shareholders’ Representative, or confidentialif the Shareholders’ Representative resigns as a Shareholders’ Representative, a majority-in-interest of the holders of any amounts then held in the Escrow Fund may, by written consent, appoint a new representative as the Shareholders’ Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of the holders of a majority-in-interest of such holders must be delivered to Parent and the Escrow Agent. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Parent and the Escrow Agent.
Appears in 1 contract
Sources: Merger Agreement (Affymetrix Inc)
Shareholders’ Representative. (a) From Each SNL Indemnifying Party by virtue of the approval and after the Closingadoption of this Agreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, appointed and empowered the Shareholders’ Representative shall be authorized to actRepresentative, and be for the benefit of the SNL Indemnifying Parties, as the exclusive agent and attorney-in-fact to act for and on behalf of each SNL Indemnifying Party, in connection with and to facilitate the consummation of the Participating Equity Holders as transactions contemplated by 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 SNL Indemnifying Party) under this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken other agreements, documents and documents instruments executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement herewith and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf consummation of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto hereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided(ii) as the Shareholders’ Representative, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders SNL 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 Participating Equity Holders 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 SNL Indemnifying Parties, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) 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 SNL Indemnifying Parties, and receive process on behalf of any or all SNL 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 refrain from enforcing any right of the SNL Indemnifying Parties arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby 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 or by the SNL 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 connection therewithgeneral, to (i) assert or institute do any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating and all things and to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions and all action that the Shareholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with the resolution of any dispute relating hereto or to carry out the transactions contemplated by this Agreement and the other agreements, documents and instruments executed in connection herewith; (v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the SNL Indemnifying Parties in connection with any matter arising under this Agreement and the other agreements, documents and instruments executed in connection herewith; and (vi) to collect, hold and disburse any amounts, including any portion of the Escrow Shares received by Shareholders’ Representative pursuant to the terms hereof in accordance with the terms of this Agreement and the other agreements, documents and instruments executed in connection herewith. Notwithstanding the foregoing, the Shareholders’ Representative may resign at any time by providing written notice of intent to resign to the SNL Indemnifying Parties, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the SNL Indemnifying Parties. By executing this Agreement, by arbitration, settlement or otherwisethe Shareholders’ Representative hereby (x) accepts its appointment and authorization to act as Shareholders’ Representative as attorney-in-fact and agent on behalf of the SNL Indemnifying Parties in accordance with the terms of this Agreement and (y) agrees to perform its obligations under, and take otherwise comply with, this Section 10.6.
(b) The Shareholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the SNL Indemnifying Parties for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or forego failing to exercise all or any or all actions permitted or required of the powers conferred upon the Shareholders’ Representative hereunder, (i) the Shareholders’ Representative shall incur no responsibility whatsoever to any SNL Indemnifying Parties by reason of any Participating Equity Holder error in judgment or necessary other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct and (ii) the Shareholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the sole discretion matter at issue, and any error in judgment or other act or omission of the Shareholders’ Representative for pursuant to such advice shall in no event subject the accomplishment Shareholders’ Representative to liability to any SNL Indemnifying Parties. Each SNL 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 acts or omissions of the Shareholders’ Representative hereunder. The foregoing and all indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the other termsShareholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, conditions upon written notice from the Shareholders’ Representative to the SNL Indemnifying Parties as to the existence of this Agreement; [***] Certain information a deficiency toward the payment of any such indemnification amount, each SNL Indemnifying Party shall promptly deliver to the Shareholders’ Representative full payment of such SNL Indemnifying Party’s share of the amount of such deficiency in proportion to such SNL Indemnifying Party’s Pro Rata Share. The Shareholders’ Representative shall only have the duties expressly stated in this document has been excluded pursuant to Regulation S-KAgreement and shall have no other duty, Item 601(b)(10)express or implied. Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counselThe Shareholders’ Representative may engage attorneys, independent public accountants and other professionals and experts selected by it, solely at the cost and expense of the Participating Equity Holders;SNL Indemnifying Parties.
(ixc) consent 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 upon all actions taken or agree omitted to any amendment be taken by the Shareholders’ Representative pursuant to this Agreement Agreement, all of which actions or omissions shall be legally binding upon the SNL Indemnifying Parties.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any SNL Indemnifying Party and (ii) shall survive the consummation of the Share Purchase, and any action taken by the Shareholders’ Representative pursuant to waive any terms and conditions of the authority granted in this Agreement providing rights shall be effective and absolutely binding on each SNL Indemnifying Party notwithstanding any contrary action of or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all direction from such SNL Indemnifying Party, except for actions necessary or appropriate in the judgment omissions of the Shareholders’ Representative for the accomplishment constituting willful misconduct.
(f) Each of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group SNL and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on CHC acknowledges and agrees that the Shareholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of SNL and treat CHC acknowledges and agrees that, other than in the Shareholders’ Representative’s role as a SNL Shareholder (if applicable), the Shareholders’ Representative as the duly appointed attorney-in-fact shall have no liability to, and shall not be liable for any Losses of, any of each Participating Equity Holder and as having the duties, power and authority provided for SNL or CHC or to any Person in this Section 11.14(a);
(xi) withhold from connection with any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount obligations of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly under this Agreement or indirectly otherwise in respect of this Agreement or the transactions contemplated hereby, except to the extent such Losses shall be proven to be the direct result of fraud by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directly, or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialobligations hereunder.
Appears in 1 contract
Sources: Share Purchase Agreement (COMSovereign Holding Corp.)
Shareholders’ Representative. (a) From In order to administer efficiently the rights and after obligations of the ClosingShareholders under this Agreement, the Shareholders hereby designate and appoint Garr▇ ▇▇ the Shareholders’ Representative shall be authorized ' Representative, to actserve as the Shareholders' agent, and be the agent proxy and attorney-in-fact for and on behalf of each the limited purposes set forth in this Agreement.
(b) Each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by Shareholders hereby appoints the Shareholders’ Representative' Representative as such Shareholder's agent, proxy and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision attorney-in-fact, with full power of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorizationsubstitution, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders for all purposes set forth in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreementincluding, for the purposes and with the powers and authority hereinafter set forth which shall includewithout limitation, the full power and authority on such Shareholder's behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to consummate the transactions contemplated by this Agreement, by arbitration(ii) to disburse any funds received hereunder to the Shareholders, settlement (iii) to execute and deliver on behalf of each Shareholder any amendment or otherwisewaiver under this Agreement, to agree to the amount of the actual Closing Date Debt, Closing Date Current Assets and Closing Date Current Liabilities pursuant to Sections 1.5(a), and take or forego any or to agree to resolution of all actions permitted or required of any Participating Equity Holder or necessary in Claims hereunder, (iv) to retain legal counsel and other professional services, at the sole discretion expense of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating to the transactions contemplated hereby to the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case to the extent of each of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with the performance by the Shareholders' Representative of its obligations hereunder this Agreement, and (v) to do each and every act and exercise any and all rights which such Shareholder or Shareholders are permitted or required to do or exercise under the Paying Agent this Agreement and the Escrow Agreementother 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 shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expenses. The fees and expenses of such advisors shall constitute expenses incurred by the Shareholders’ ' Representative and shall be reimbursed in accordance with this Section 11.14(a)(xiiisurvive the death, bankruptcy or other incapacity of any Shareholder.
(c) and Section 11.14(b). The Expense Fund will be used for Each of the purposes of paying directly, Shareholders hereby agrees that any amendment or reimbursing the Shareholders’ Representative for, any third-party expenses pursuant to waiver under this Agreement, and any indemnification obligations pursuant action taken on behalf of the Shareholders to enforce the rights of the Shareholders under this Agreement. The Shareholders’ Representative will not , and any action taken with respect to any adjustment or Claim (including any action taken to object to, defend, compromise or agree to the payment of such adjustment or Claim), shall be liable for any loss effective if approved in writing by persons who were the holders of principal a majority of the Expense Fund other than as a result of its gross negligenceCorporations' Stock immediately prior to the Closing, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received that each and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund every action so taken shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s dutiesbinding and conclusive on every Shareholder, whether or not such Shareholder had notice of, or at approved, such earlier time amendment or waiver.
(d) Garr▇ ▇▇▇ll serve as the Shareholders’ ' Representative may determine in its sole discretionuntil he resigns or is otherwise unable or unwilling to serve. [***] Certain information in In the event that a Shareholders' Representative resigns from such position or is otherwise unable or unwilling to serve, the remaining Shareholders shall select, by the vote of the holders of a majority of the Corporations' Stock immediately prior to the Closing, a successor representative to fill such vacancy, shall provide prompt written notice to WCI of such change and such substituted representative shall then be deemed to be the Shareholders' Representative for all purposes of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidentialAgreement.
Appears in 1 contract
Shareholders’ Representative. (a) From The Shareholders’ Representative confirms that each AgEagle Shareholder has signed a Letter of Transmittal in the form attached as Exhibit B prior to the execution and after the Closing, delivery of this Agreement pursuant to which each AgEagle Shareholder hereby has appointed B▇▇▇ ▇▇▇▇▇▇▇▇ as the Shareholders’ Representative shall be authorized to act, and be the as agent and attorney-in-fact for and on behalf of each AgEagle Shareholder, with full powers of the Participating Equity Holders as contemplated by this Agreement and otherwise bind all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representativesubstitution, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreement, or any other agreement or document entered into or executed in connection herewith, for and on behalf of any Participating Equity Holdercommunications, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby and, in connection therewith, to (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; and (iii) file and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, into settlements and compromises of, and demand arbitration dispute resolution and comply with Orders orders of arbitrators, courts, tribunals or other Governmental Authorities or Entities and awards of arbitrators arbitrators, courts, tribunals or other Governmental Entities with respect to, such claims, resolve to any such claims, take any actions in connection with claims or other matters that may arise under this Agreement or the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwiseother ancillary transaction documents, and to take or forego any or all actions permitted and execute all such documents necessary or required of any Participating Equity Holder or necessary appropriate in the sole good faith discretion of the Shareholders’ Representative for the accomplishment of the foregoing transactions contemplated by this Agreement and all of the other termsancillary transactions, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-Kincluding, Item 601(b)(10). Such excluded information is both without limitation, the power:
(i) not material to agree with Parent and (ii) the type that the Registrant treats as private or confidential.
(viii) consult Merger Sub with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree respect to any amendment to this Agreement matter or to waive any terms and conditions of this Agreement providing rights thing required by or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions deemed necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed attorney-in-fact of each Participating Equity Holder and as having the duties, power and authority provided for in this Section 11.14(a);
(xi) withhold from any cash payment or distribution to the Participating Equity Holders on and after the date hereof, the amount of any fee payable to the Shareholders’ Representative and any reasonable cost and expense incurred directly or indirectly by the Shareholders’ Representative in connection with its obligations hereunder or relating this Agreement, including without limitation any amendments to this Agreement;
(ii) to receive and hold the Merger Consideration and to distribute the same to the transactions contemplated hereby to the extent the Expense Fund has been depleted; andAgEagle Shareholders;
(xiiiii) enforce payment and distribution of any amounts payable to the Participating Equity Holders, in each case establish an account to the extent of each hold a reasonable portion of the Participating Equity Holders’ respective interests therein.
(xiii) In connection with Merger Consideration and to use such portion of the performance of its obligations hereunder and under the Paying Agent Agreement and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable Merger Consideration for out-of-pocket expenses. The fees costs and expenses of such advisors shall constitute expenses incurred by in connection herewith;
(iv) to execute and deliver any and all other agreements, documents and other papers which the Shareholders’ Representative and shall be reimbursed deems necessary or appropriate in accordance connection with this Section 11.14(a)(xiii) and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyAgreement, or reimbursing any of the Transactions contemplated hereby or thereby;
(v) to terminate, amend, waive or interpret any provision of this Agreement;
(vi) to act for each AgEagle Shareholder and all AgEagle Shareholders with regard to the indemnification matters referred to in this Agreement;
(vii) to retain attorneys, accountants and other professionals to provide services to the Shareholders’ Representative for, any third-party expenses pursuant to in fulfillment of his obligations under this Agreement, any indemnification obligations pursuant to this Agreement. The Shareholders’ Representative will not be liable for any loss of principal Agreement and as otherwise deemed appropriate in connection with the Closing of the Expense Fund other than as a result transactions contemplated by this Agreement or related matters arising thereafter; and
(viii) to do or refrain from doing any further act or deed on behalf of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion of the Shareholders’ Representative’s duties, or at such earlier time as each AgEagle Shareholder which the Shareholders’ Representative may determine deems necessary or appropriate in its his sole discretion. [***] Certain information in discretion relating to the subject matter of this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material Agreement as fully and (ii) the type that the Registrant treats completely as private or confidentialsuch AgEagle Shareholder could if personally present.
Appears in 1 contract
Shareholders’ Representative. (a) From The Dandrit Consenting Holders have voted for and after consented to the Closingexecution and adoption of this Agreement and the approval of the transactions contemplated hereby, including but not limited to the Exchange, and have irrevocably appointed attorney Niels ▇▇▇▇ ▇▇▇▇▇▇▇ as the Shareholders’ Representative shall be authorized to actact on behalf of the Dandrit Consenting Shareholders, with the same effect as if each such Dandrit Consenting Shareholder had individually appointed such Shareholders’ Representative, with full power and be authority to act in the agent name of and attorney-in-fact for and on behalf of each of the Participating Equity Holders as contemplated by this Agreement and otherwise bind Dandrit Consenting Shareholder with respect to all of the Participating Equity Holders for the purposes of this Agreement. The Participating Equity Holders shall be bound by all actions taken and documents executed by the Shareholders’ Representative, and Parent Group and other Indemnified Parties shall be entitled to rely exclusively on any action or decision of the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may not resign nor be removed. In connection with such authorization, the Shareholders’ Representative shall be the sole Person authorized and empowered to act, on behalf of each of the Participating Equity Holders matters arising in connection with the activities to be performed on behalf of the Participating Equity Holders under this Agreement, the Paying Agent Agreement and the Escrow Agreement, for the purposes and with the powers and authority hereinafter set forth which shall include, the power and authority on behalf of the Participating Equity Holders to:
(i) execute, as the Shareholders’ Representative, this Agreement and any agreement or instrument entered into or delivered in connection with the Merger and the transactions contemplated by this Agreement;
(ii) execute and deliver the Paying Agent Agreement and the Escrow Agreement and to agree to such amendments or modifications thereto as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; provided, however, that the relative interests of the Participating Equity Holders are not altered in a manner not contemplated by this Agreement, the Paying Agent Agreement or the Escrow Agreement;
(iii) give and receive notices permitted or required under this Agreementwith, or any other agreement or document entered into or executed in connection herewithrelated to, for and on behalf of any Participating Equity Holder, to or from Parent Group (on behalf of itself or any other Indemnified Party) relating to this Agreement, the Merger and any other matters contemplated by this Agreement or by such other agreement or instrument (except to the extent that this Agreement or such other agreement or instrument expressly contemplates that any such notice or communication shall be given or received by each Participating Equity Holder individually);
(iv) to use reasonable efforts to enforce and protect the rights and interests of the Participating Equity Holders and to enforce and protect the rights and interests of the Participating Equity Holders arising out of or under or in any manner relating to this Agreement and the transactions contemplated hereby andand thereby. Each of the matters referred to in this Section 1.7 shall be deemed to have been accepted, in connection therewithagreed upon, to acknowledged or consented to, as applicable, by each Dandrit Consenting Shareholder upon the vote or consent by such Dandrit Consenting Shareholder for the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Exchange. The Shareholders’ Representative has been appointed (i) assert or institute any Proceeding or make any indemnification claims; (ii) settle or compromise any Proceeding relating to this Agreement, the Paying Agent Agreement or the Escrow Agreement; agent and (iii) file true and prosecute appeals from any judgment rendered in any of the foregoing Proceedings;
(v) object to such claims pursuant to Section 9.2 and Section 9.3;
(vi) pay the cost and expense of the Participating Equity Holders for the Independent Accountant or any other payment on behalf of the Participating Equity Holders pursuant to the terms of this Agreement;
(vii) consent or agree to, negotiate, enter into, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of Governmental Authorities or awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the transactions contemplated by this Agreement, by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Participating Equity Holder or necessary in the sole discretion of the Shareholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions of this Agreement; [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(viii) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Participating Equity Holders;
(ix) consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Participating Equity Holders in accordance with the terms hereof and in the manner provided herein;
(x) take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Parent Group and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the Shareholders’ Representative and treat the Shareholders’ Representative as the duly appointed lawful attorney-in-fact of each Participating Equity Holder Dandrit Consenting Shareholder, with full power of substitution, and as having the duties, power with full capacity and authority provided in its sole discretion, to act in the name of and for and on behalf of each Dandrit Consenting Shareholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to this Section 11.14(a);
Agreement, and (xiii) withhold from any cash payment or distribution the agent for service of process for each Dandrit Consenting Shareholder, and the Dandrit Consenting Shareholders have irrevocably consented to the Participating Equity Holders on service of any and after all process in any action or proceeding arising out of or relating to this Agreement by the date hereofdelivery of such process to the Shareholders’ Representative. Without limiting the generality of the foregoing, the amount power of the Shareholders’ Representative shall include the power to represent each Dandrit Consenting Shareholder with respect to all aspects of this Agreement, which power shall include, without limitation, the power to (i) waive any fee payable and all conditions of this Agreement, (ii) amend this Agreement and any agreement executed in connection herewith or therewith in any respect, (iii) receive notices or other communications, (iv) deliver any notices, certificates or other documents required, and (v) take all such other action and to do all such other things as the Shareholders’ Representative deems necessary or advisable with respect to this Agreement. ▇▇▇▇▇▇ and Dandrit shall have the absolute right and authority to rely upon the acts taken or omitted to be taken by the Shareholders’ Representative on behalf of the Dandrit Consenting Shareholders. Each Dandrit Consenting Shareholder has acknowledged and agreed that (i) all deliveries by Dandrit or the Parent including, without limitation, any payment, to the Shareholder’ Representative shall be deemed deliveries to the Dandrit Consenting Shareholders, (ii) ▇▇▇▇▇▇ or Dandrit shall not have any liability with respect to any aspect of the distribution or communication of such deliveries between the Shareholders’ Representative and any reasonable cost Dandrit Consenting Shareholder and expense incurred directly or indirectly by (iii) any disclosure made to the Shareholders’ Representative in connection with its obligations hereunder by or relating on behalf of ▇▇▇▇▇▇ or Dandrit shall be deemed to be a disclosure made to each Dandrit Consenting Shareholder. In the transactions contemplated hereby to event that attorney Niels ▇▇▇▇ ▇▇▇▇▇▇▇ refuses to, or is no longer capable of, serving as the extent the Expense Fund has been depleted; and
(xii) enforce payment and distribution Shareholders’ Representative hereunder, holders of any amounts payable to the Participating Equity Holders, in each case to the extent of each a majority of the Participating Equity Holdersissued and outstanding capital stock of Dandrit shall promptly appoint a successor Shareholders’ respective interests therein.
(xiii) In connection with the performance of its obligations hereunder Representative who shall be reasonably acceptable to Dandrit and under the Paying Agent Agreement shall thereafter be a successor Shareholders’ Representative hereunder, and the Escrow Agreement, the Shareholders’ Representative shall have the right at any time serve until such successor is duly appointed and from time qualified to time to select and engage attorneys, accountants, investment bankers, advisors, or consultants and obtain such other professional and expert assistance (in all cases as reasonably necessary), and maintain such records, as reasonably necessary or desirable, and incur other reasonable out-of-pocket expensesact hereunder. The fees Dandrit Consenting Shareholders shall indemnify, defend and expenses of such advisors shall constitute expenses incurred by hold harmless the Shareholders’ Representative from and shall be reimbursed in accordance with this Section 11.14(a)(xiii) against any and Section 11.14(b). The Expense Fund will be used for the purposes of paying directlyall loss, or reimbursing liability, cost, damage and expense, including, without limitation, reasonable counsel fees and third party expenses which the Shareholders’ Representative formay suffer or incur by reason of any action, claim or proceeding brought against the Stockholders’ Representative arising out of or relating in any third-party expenses pursuant way to this Agreement, or any indemnification obligations pursuant transaction to which this Agreement. The Shareholders’ Representative will not be liable for any loss of principal of Agreement relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the Expense Fund other than as a result of its gross negligence, willful misconduct or fraud. The Shareholders’ Representative will hold these funds separate from its own funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Participating Equity Holders at the time of Closing. Any funds remaining in the Expense Fund shall be distributed to the Participating Equity Holders promptly following the completion gross negligence of the Shareholders’ Representative’s duties, or at such earlier time as the Shareholders’ Representative may determine in its sole discretion. [***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
Appears in 1 contract
Sources: Share Exchange Agreement (DanDrit Biotech USA, Inc.)