Common use of Shareholders’ Representative Clause in Contracts

Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 3 contracts

Samples: Agreement and Plan of Merger (National Technical Systems Inc /Ca/), Agreement and Plan of Merger (National Technical Systems Inc /Ca/), Agreement and Plan of Merger (National Technical Systems Inc /Ca/)

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Shareholders’ Representative. (a) By Immediately upon the execution and delivery adoption of this Agreement, subject to Agreement by the terms requisite vote or written consent of Section 10.15(b)the AeroAstro Shareholders, each AeroAstro Shareholder shall be deemed to have consented to and irrevocably appoints, authorizes constituted and directs Xxxxxx X. appointed Xx. Xxxx Xxxxxxx (the “Shareholders’ Representative”) to act as such AeroAstro Shareholder's agent, representative, proxy ’s true and lawful attorney-in-fact (and agent, with full power of substitution for him and in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting name, place and xxxxx, in any and all capacities, to do any and all things and execute any and all documents which may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement, including but not limited to: (i) execution of the documents and certificates pursuant to this Agreement; (ii) receipt of payments under or pursuant to this Agreement and disbursement thereof to the AeroAstro Shareholders and others, as contemplated by this Agreement; (iii) receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement and the Transaction Documents, and exercisingEscrow Agreement; (v) giving or agreeing to, on behalf of all the AeroAstro Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted consents, waivers, amendments or required to do or exercise under Article IX, and in connection with any Claim against or modifications deemed by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable’ Representative, and shall be deemed in his discretion, to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising necessary or appropriate under this Agreement and the Transaction Documents after execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) subject to Delaware Law, amending this Agreement (other than this Section 1.12), or any of the Closing Dateinstruments to be delivered to Radyne or Merger Sub pursuant to this Agreement; (vii) disputing or refraining from disputing, the Shareholders' Representative shall act for and on behalf of the AeroAstro Shareholders, any claim made by Radyne, Merger Sub or the Surviving Corporation under this Agreement and any and all agreements and documents required or contemplated by this Agreement (“Transaction Documents”); (viii) negotiating and compromising, on behalf of each such AeroAstro Shareholder, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, the Transaction Documents; (ix) executing, on behalf of each such AeroAstro Shareholder, any settlement agreement, release or other document with respect to such dispute or remedy; and (x) engaging attorneys, accountants, agents or consultants on behalf of the AeroAstro Shareholders in connection with the Transaction Documents and paying any fees related thereto. If, for any reason, Xx. Xxxxxxx is incapacitated or unable to act, Xxxxxx X. Xxxxx is hereby appointed as his successor to act as the Shareholders’ Representative. Radyne shall be entitled to send all notices to, and to the extent Shareholders are asked to execute documents rely upon all consents and to take approvals given, and all other actions after taken by the Closing and do not do so incumbent Shareholders’ Representative until such time as promptly as possible when requestedRadyne receives actual notice of such Shareholders’ Representative’s death or incapacity. Radyne shall be entitled to rely upon the response of the Shareholders’ Representative in all matters pertaining to the subject matter hereof, including, without limitation, any consent or approval provided or contemplated hereunder to be given by or on behalf of, or obtained from, the Shareholders appoint AeroAstro Shareholders. Notice to or service upon the Shareholders' Representative as their limited irrevocable attorney shall be deemed to constitute good and sufficient notice or service upon all of the AeroAstro Shareholders for all matters, including without limitation, all notices of or demands for legal processes. Notwithstanding the foregoing, in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the event that the Shareholders' Representative which shall have ’ Representative, with the same force and effect as if performed by advice of counsel, is of the opinion that he requires further authorization or advice from the AeroAstro Shareholders themselves. When on any matters concerning this Agreement or any the Transaction Document provides that a determination or any other action or event is conclusive and binding upon Documents, the Shareholders, such determination, action or event of the Shareholders' Representative shall be conclusive and binding upon entitled to seek such further authorization from the ShareholdersAeroAstro Shareholders prior to acting on their behalf. The Shareholders' Representative In such event, each AeroAstro Shareholder shall have all a number of votes equal to the number of shares of AeroAstro Common Stock held by such incidental powers as may be necessary or desirable AeroAstro Shareholder immediately prior to carry into effect the provisions Effective Time and the authorization of this Section 10.15, including, at the expense a majority of the Shareholders, to retain attorneys, accountants and other advisors to assist him in the performance such number of his duties hereunder. All such expenses votes shall be shared pro rata among binding on all of the AeroAstro Shareholders based upon each Shareholder's portion and shall constitute the authorization of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the AeroAstro Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 2 contracts

Samples: Merger Agreement (Radyne Corp), Merger Agreement (Radyne Corp)

Shareholders’ Representative. (a) By Each of the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Indemnifying Shareholders hereby appoints Xxxxxx X. Xxxxxxx to act Xxxxxxxxx as such Shareholder's agent, representative, proxy its agent and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, Indemnifying Shareholders to: (i) give and receive notices and communications 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 or 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 Parent (on behalf of himself or any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Transaction Documents Escrow Agreements or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to of the transactions and other matters contemplated hereby or thereby, (ii) authorize deliveries to conduct Parent of cash or cease shares from the Cash Escrow Fund or the Stock Escrow Fund, as the case may be, in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to conduct such claims) pursuant to ARTICLE 7, (iii) object to such claims in accordance with Section 7.4, (iv) consent or agree to, negotiate, enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, except for claims for indemnification made directly against the defense of all Claims against any Indemnifying Shareholders, (v) bind such Indemnifying Shareholder to the contract referenced in connection with this Agreement and Section 7.8(c) pursuant to settle all such Claims which the Shareholders’ Representative agrees on behalf of all the Indemnifying Shareholders and exercise any and all rights that the Indemnifying Shareholders will be liable for any amounts paid in resolution or settlement of a third-party claim, the defense or settlement of which is controlled by the Shareholders’ Representative in accordance with Section 7.8, regardless of the limitations set forth in this ARTICLE 7, (vi) Indemnifying Shareholder to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing or that are permitted specifically mandated by the terms of this Agreement, in each case without having to seek or required to do or exercise obtain the consent of any Person under Article IXany circumstance, and (vii) act as expressly set forth in connection with any Claim against or by the Shareholders under this Agreement. The appointment Shareholders’ Representative shall be the sole and agency exclusive means of asserting or addressing any of the above, and no former shareholder shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Shareholders’ Representative. The Person serving as the Shareholders’ Representative may be replaced from time to time by the holders of a majority in interest of the shares held immediately prior to the Effective Time by the Indemnifying Shareholders upon not less than ten days’ prior written notice to Parent. No bond shall be required of the Shareholders' Representative is irrevocable’ Representative, and the Shareholders’ Representative shall be deemed receive no compensation for his services. Notices or communications to be coupled with an interest. Execution of this Agreement by or from the Shareholders Shareholders’ Representative shall constitute agreement notice to be bound by the actions or from each of the Indemnifying Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Sunpower Corp), Agreement and Plan of Merger (Sunpower Corp)

Shareholders’ Representative. (a) By the execution Effective upon and delivery of pursuant to this Agreement, subject to the terms Shareholders’ Representative shall be hereby appointed as the representative of Section 10.15(b), each Shareholder irrevocably appoints, authorizes the holders of Company Stock and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and the attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, agent for and on behalf of each holder of Company Stock solely with respect to any claims by any Indemnified Party under Article 8 or Article 9 of this Agreement. The Shareholders’ Representative hereby accepts such appointment. The Shareholders’ Representative shall have the Shareholders, authority to take any and all actions, 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 make any Shareholder from and after the Closing, to give or receive any notices decisions required or permitted to be given hereunder taken by the Shareholders’ Representative under this Agreement, including the exercise of the power to (i) agree to, negotiate, enter into settlements and thereundercompromises of, commence any suit, action or proceeding, and comply with orders of courts with respect to, claims by any Indemnified Party under Article 8 or Article 9 of this Agreement, and (ii) take all actions necessary in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing. The Shareholders’ Representative will have sole authority and power to accept service of process act on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, each former shareholder of the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating Company with respect to the transactions contemplated hereby disposition, settlement or thereby, to conduct or cease to conduct the defense other handling of all Claims against any Shareholder in connection with claims for indemnification under this Agreement and to settle all such Claims on behalf related rights or obligations of all the Shareholders and exercise any and all rights that former shareholders of the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders Company arising under this Agreement. The appointment and agency Shareholders’ Representative shall use commercially reasonable efforts, based on contact information available to the Shareholders’ Representative, to keep the former shareholders of the Shareholders' Representative is irrevocable, and shall be deemed Company reasonably informed with respect to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as pursuant to all matters arising the authority granted the Shareholders’ Representative under this Agreement and Agreement. Each former shareholder of the Transaction Documents after the Closing Date, Company shall promptly provide written notice to the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions change of this Section 10.15(a)address of such shareholder.

Appears in 2 contracts

Samples: Agreement and Plan of Merger and Reorganization (Photon Dynamics Inc), Agreement and Plan of Merger and Reorganization (Photon Dynamics Inc)

Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b8.16(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Lemna Hunter (the “Shareholders’ Representative”) to act as such Shareholder's ’s agent, representative, proxy and attorney-in-fact (in his capacity as the Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction DocumentsAgreement, 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 have full power and authority, for and on behalf of 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, the Transaction Documents Agreement or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or therebyhereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IXVII, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, 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 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 Shareholders' Representative which shall have 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 10.158.16, 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 portion of the aggregate Gross Closing Consideration’s Pro Rata Portion. Under this Section 10.15(a8.16(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Breaches.

Appears in 1 contract

Samples: Stock Purchase Agreement (National Technical Systems Inc /Ca/)

Shareholders’ Representative. p) The Sellers, by executing or approving this Agreement and the transactions contemplated hereby, irrevocably agree to appoint and constitute Xxxxxxx Xxxxx (a) By and by the execution and delivery of this AgreementAgreement as the Shareholders’ Representative, subject to Xxxxxxx Xxxxx hereby accept his appointment) for and on behalf of the terms of Section 10.15(b)Sellers as the true, each Shareholder irrevocably appoints, authorizes exclusive and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy 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 his capacity as Shareholders' Representativeconnection with, or related to, this Agreement and the transactions contemplated hereby; (ii) after in the Closing Date for name, place and stead of each Seller (A) in connection with the purpose of effecting the consummation of Share Purchase and the transactions contemplated by this Agreement and in accordance with the Transaction Documentsterms and provisions of this Agreement, and exercising(B) in any proceeding involving this Agreement, on behalf of to do, or refrain from doing, all Shareholderssuch further acts and things, the rights and powers necessary, appropriate or advisable in connection with any of the Shareholders hereunder foregoing, including execute and thereunderdeliver 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. Without limiting derogating from the generality of the foregoing, as of the date hereof the Shareholders’ Representative shall have the right, power and authority to: (i) give and receive notices, consents and communications, executed by the Shareholders’ Representative, including where this Agreement expressly require an action or consent of the Shareholders' Representative shall have full power Representative; (ii) authorize delivery to Buyer Indemnitees of the applicable portion of the Aggregate Consideration or supplemental indemnification amounts, if any, in satisfaction of claims by Indemnified Parties, (iii) object to such deliveries, (iv) agree to, negotiate, defend, resolve, enter into settlements and authoritycompromises of, for and any suit, proceeding, claim or dispute under this Agreement on behalf of the ShareholdersSellers and comply with orders of courts and awards of arbitrators with respect to such claims, (v) agree to, negotiate, enter into and provide amendments and supplements to take all actionsand waivers in respect of this Agreement, including termination of this Agreement, (vi) retain legal counsel, accountants, consultants, advisors and other experts, and to exercise such rights, power and authorityincur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby thereby; and (vii) to exercise such rights, power and authority as are incidental thereto, to represent any Shareholder from and after take all actions necessary or appropriate in the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service judgment of process on behalf the Shareholders’ Representative for the accomplishment of any or all of the foregoing. The identity of the Shareholders, ’ Representative may be changed by the joint consent of the Sellers upon not less than fifteen (15) days’ prior written notice to execute all of the Parties. The Shareholders’ Representative may resign from his position by providing a 15-day prior written notice to the Sellers and deliverin such case, or hold in escrow and releasethe case of death, any exhibits disability, or amendments to this Agreementinability of the Shareholders’ Representative, the Transaction Documents 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 shall receive no compensation for his services. Notices or any other agreementscommunications to or from the Shareholders’ Representative shall constitute notice to or from each of the Sellers. Any and all decisions, certificatesacts, stock powers, statements, notices, approvals, extensions consents or waivers relating to instructions made or given by the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder Shareholders’ Representative in connection with this Agreement and to settle all such Claims on behalf shall constitute a decision of all the Shareholders Sellers and exercise any shall be final, binding and all rights that the Shareholders are permitted or required to do or exercise under Article IXconclusive upon each and every Seller, and in connection with Parent and Buyer shall be entitled to rely upon any Claim against such decision, act, consent or by the Shareholders under this Agreement. The appointment and agency instruction of the Shareholders' Representative ’ Representative. This power of attorney is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder interest and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)irrevocable.

Appears in 1 contract

Samples: Share Purchase Agreement (Attunity LTD)

Shareholders’ Representative. (a) By the execution Each Seller hereby irrevocably makes, constitutes and delivery of this Agreementappoints XXXXX X. XXXXXXXX as his, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes her or its exclusive agent and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose with full power of effecting 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 by this Agreement Agreement, including but not limited to: (i) make all decisions relating to the determination of the Actual Closing Date Working Capital Amount; (ii) make all decisions relating to the distribution of any amounts payable or distributable to the Sellers hereunder; (iii) execution and the Transaction Documents, and exercisingdelivery, on behalf of all ShareholdersSellers, the rights and powers of the Shareholders Escrow Agreement and any other document required by this Agreement; (iv) receipt of payments hereunder and thereunder. Without limiting under the generality Escrow Agreement and the disbursement thereof to the Sellers and others; (v) receipt and forwarding of notices and communications pursuant to this Agreement and the Escrow Agreement; (vi) administration of this Agreement and the Cash Escrow Agreement, including the resolution of any dispute or claim; (vii) the resolution, settlement, or compromise of any claim for indemnification asserted against Sellers pursuant to 5.1(a); (viii) asserting, on behalf of the 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, or waiver of any of its terms and conditions; and (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 Shareholders' Representative shall have full power and authority, for and on behalf of 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 consent of any Seller or other Person under any circumstance. In the event that XXXXX X. XXXXXXXX is unwilling or unable to serve as Shareholders’ Representative, to execute then each Seller hereby irrevocably makes, constitutes and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense appoints S. XXXXXX XXXXXXXXXXX as Shareholders’ Representative for all purposes of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment In the event that both XXXXX X. XXXXXXXX and agency of the S. XXXXXX XXXXXXXXXXX are unwilling or unable to serve as Shareholders' ’ Representative, then each Seller hereby irrevocably makes, constitutes and appoints XXXXXXX X. XXXXX as Shareholders’ Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution for all purposes of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Michael Baker Corp)

Shareholders’ Representative. (a) By Each SNL Indemnifying Party by virtue of the execution approval and delivery adoption of this AgreementAgreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, subject to appointed and empowered the terms Shareholders’ Representative, for the benefit of Section 10.15(b)the SNL Indemnifying Parties, each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact (to act for and on behalf of each SNL Indemnifying Party, in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on SNL Indemnifying Party) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby as the Shareholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Shareholders’ Representative, to enforce and protect the rights and interests of the 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 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 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 general, to do any and all things and to take any and all action that the Shareholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and the Transaction Documentsother agreements, documents and exercisinginstruments executed in connection herewith; (v) to engage special counsel, on behalf of all Shareholders, the rights accountants and powers of the Shareholders hereunder other advisors and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and incur such other expenses on behalf of 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and SNL Indemnifying Parties in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters matter arising under this Agreement and the Transaction Documents after other agreements, documents and instruments executed in connection herewith; and (vi) to collect, hold and disburse any amounts, including any portion of the Closing DateEscrow 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, the Shareholders’ Representative hereby (x) accepts its appointment and authorization to act for as Shareholders’ Representative as attorney-in-fact and agent on behalf of the ShareholdersSNL Indemnifying Parties in accordance with the terms of this Agreement and (y) agrees to perform its obligations under, and to the extent Shareholders are asked to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requestedotherwise comply with, the 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)10.6.

Appears in 1 contract

Samples: Share Purchase Agreement (COMSovereign Holding Corp.)

Shareholders’ Representative. (a) By the their execution and delivery of this Agreement, subject to the terms each of Section 10.15(b), Seller and each Shareholder hereby irrevocably appoints, authorizes constitutes and directs Xxxxxx X. Xxxxxxx to act appoints Xxxx Xxxxxxxxx as each such Shareholder's agent, representative, proxy Person’s true and lawful agent and attorney-in-fact (“Shareholders’ Representative”), with full and complete power and authority in his, her or its name and on his capacity as Shareholders' Representativeor its behalf: (a) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, to act on behalf of such Person for any and all Shareholderspurposes according to the terms of this Agreement, including the rights power to amend this Agreement in accordance with Section 7.10; (b) to give and powers of the Shareholders hereunder receive notices and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power make any and authority, for and all decisions under Section 2.4 on behalf of the such Shareholders; (c) to give and receive notices and to provide consents hereunder; and (d) in general, to take do any and all actions, things and to exercise such rightsperform any and all acts under or pursuant to this Agreement, power including executing and authority, in connection with the transactions delivering all ancillary instruments referenced herein or contemplated hereby in each case above, all in the absolute discretion of Shareholders’ Representative; and thereby and Xxxx Xxxxxxxxx hereby accepts such appointment. Anything herein to exercise such rightsthe contrary notwithstanding, power and authority as are incidental thereto, to represent any Shareholder from and after the Closing, to give or receive any notices actions 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with taken under this Agreement and to settle all such Claims any ancillary instruments referenced herein or contemplated hereby by Shareholders may be taken by Shareholders’ Representative on behalf of all the of Shareholders and exercise any (including by Shareholders’ Representative, in his own individual capacity as a Shareholder). This power of attorney, and all rights that authority hereby conferred, is granted subject to the Shareholders are permitted or required to do or exercise under Article IXinterests of the other Shareholders, the Company and Buyer hereunder and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency consideration of the Shareholders' Representative is irrevocablemutual covenants and agreements made herein, and shall be deemed to irrevocable and shall not be coupled with an interest. Execution terminated by any act of this Agreement Seller or any Shareholder or by operation of law, whether by the Shareholders shall constitute agreement to be bound death or incapacity of any Shareholder or by the actions occurrence of the any other event. Seller and each Shareholder agrees, jointly and severally, to hold Shareholders' Representative taken hereunder free and thereunder. The Parties agree thatharmless from any and all claims which they, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When this Agreement or any Transaction Document provides that one of them, may sustain as 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless result of any provisions of this Section 10.15(a)action taken by Shareholders’ Representative in good faith hereunder.

Appears in 1 contract

Samples: Purchase Agreement (Miller Herman Inc)

Shareholders’ Representative. (a) By Each Shareholder, by the execution approval and delivery adoption of this Agreement, subject to hereby irrevocably appoints the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Shareholders’ Representative to act as such Shareholder's agent, representative, proxy and attorney-in-attorney in fact (in his capacity as for such Shareholder, and authorizes the Shareholders' Representative) after ’ Representative with full power of substitution to execute the Closing Date for the purpose of effecting 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 Transaction DocumentsShareholder Related Agreements, including (i) to take all action necessary to consummate the transactions contemplated by this Agreement and exercisingthe Escrow Agreement, on behalf 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 Shareholdersnotices required to be given under this Agreement, the rights and powers 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 Shareholders hereunder and thereunder. Without limiting the generality of the foregoingPurchaser in accordance with Article VIII, the Shareholders' Representative shall have full power and authority, for and (iv) to make decisions on behalf of the Shareholders, to Company and the Shareholders and take any and all actions, and to exercise such rights, power and authority, in connection with the transactions additional action as is 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 taken by or on behalf of any Shareholdersthe Shareholders by the terms of this Agreement or the Escrow Agreement, to execute including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims and deliverNotices of Claims, or hold in escrow and release, any exhibits or (B) amendments to this Agreement, the Transaction Documents 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 agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating Indemnified Party pursuant to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing DateSection 8.1(d), the Shareholders' Representative shall act for and on behalf coordinate the defense and/or settlement of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such claims with the applicable Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).. 72

Appears in 1 contract

Samples: Share Purchase Agreement (Sorrento Therapeutics, Inc.)

Shareholders’ Representative. (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder Sellers hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoint Shareholders' Representative as such Shareholder's agent, representative, proxy and their lawful attorney-in-fact (to act in his capacity as Shareholders' Representative) after the Closing Date name, place and stead of Sellers to execute and deliver the stock powers for the purpose Shares, and the certificates referred to in Section 7.1(f), and any amendments, supplements, modifications, waivers or terminations of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentsto receive delivery of, and exercising, on behalf of all Shareholderspayments under, the rights Note and, as their agent with respect to, and powers of with the Shareholders hereunder full power to resolve, all questions, disputes, conflicts and thereundercontroversies concerning (a) amounts payable under the Note, (b) matters concerning the adjustment to the Initial Purchase Price under Sections 2.5 and 2.6, and (c) all matters concerning Buyer Claims under Article VIII. Without limiting Shareholders' Representative is authorized to give all notices and take all actions deemed appropriate by and with respect to such matters, to agree to setoffs against the generality of Note and will have no liability or obligation to any Seller for any act or omission taken in good faith in such capacity. Notwithstanding the foregoing, the Shareholders' Representative shall have full power no authority as the lawful attorney-in-fact to act in the name, place and authority, for and on behalf stead of the ShareholdersOptionholder with respect to any amendment, to take all actionssupplement, and to exercise such rightsmodification, 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 waiver or receive any notices required or permitted to be given hereunder and thereunder, to accept service termination of process on behalf of any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The This appointment is coupled with an interest and agency is irrevocable by each Seller, and shall terminate only upon the later to occur of (i) termination of Sellers' obligations pursuant to Article III or (ii) payments of all amounts due under the Note and distribution thereof to the Sellers. Notwithstanding the foregoing, in the event Shareholders' Representative resigns, is irrevocableincapacitated, and makes a general assignment for the benefit of its creditors, or is the subject of bankruptcy, reorganization, liquidation, dissolution or similar proceedings, Sellers shall be deemed use reasonable efforts to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the appoint a new Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and by the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf vote of a majority of the ShareholdersSellers, and with each Seller to the extent 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 Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney in fact to execute all have that number of votes determined by multiplying 100,000 by such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have 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 10.15, 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 ShareholderSeller's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)Pro Rata Share.

Appears in 1 contract

Samples: Stock Purchase Agreement (KMG America CORP)

Shareholders’ Representative. The Shareholders’ Representative is hereby approved to serve as the representative of the Shareholders for the purposes of Section 8.01 hereof. Each of the Shareholders hereby does and shall irrevocably appoint the Shareholders’ Representative as the agent, proxy and attorney in fact for such Shareholder for the purposes of Section 8.01 hereof, including full power and authority on such Shareholder’s behalf (a) By the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact pay expenses (in his capacity as Shareholders' Representative) whether incurred on or after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, date hereof) incurred in connection with the transactions contemplated hereby performance of Section 8.01 this Agreement, (b) to execute 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 deliver on behalf of such Shareholder any Shareholdersamendment or waiver hereto, (c) to execute take all other actions to be taken by or on behalf of such Shareholder in connection herewith, (d) to negotiate, settle, compromise and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers otherwise handle all matters relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement guarantee provided under Section 8.01 hereof and to settle all such Claims on behalf of all the Shareholders do each and every act and exercise any and all rights that the which such Shareholder is, or Shareholders are collectively are, permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment Shareholders Representative hereby accepts the present mandate in accordance with Article 2144 of the Civil Code of Québec. Buyer may conclusively rely, without independent verification or investigation, upon any decision or action of the Shareholders Representative as being the binding decision or action of every Shareholder, and agency the Buyer shall not be liable to any Shareholder or any other Persons for any actions taken or omitted from being taken by them or by Buyer in good faith and in accordance with or reliance upon any such decision or action of the Shareholders Representative. Each Shareholder agrees to indemnify and to hold and save harmless the Shareholders Representative from and against any and all Losses that the Shareholders Representative may sustain or incur as a result of any action taken by the Shareholders’ Representative in relation to the mandate set forth in the present Section 10.05, save for any such Losses attributable to the intentional or gross fault of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)’ Representative.

Appears in 1 contract

Samples: Share Purchase Agreement (Meridian Bioscience Inc)

Shareholders’ Representative. (a) By As an integral component of the conversion of the JX Shares pursuant to Article II, and in order to facilitate the consummation 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 execution and delivery of the instrument provided for in Section 2.04(b) shall be deemed to have irrevocably constituted and appointed and shall irrevocably constitute and appoint PFire Escrow, Inc., (and by execution of this AgreementAgreement PFire Escrow, subject to the terms of Section 10.15(bInc. hereby accepts such appointment), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the Company Indemnified Parties’ agent and attorney-in-fact for and on their behalf, with full power of substitution, to act in the name, place and stead of each Company Indemnifying Party (in his capacity as the “Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by with respect to this Agreement and the Transaction Documentstaking by the Shareholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Shareholders’ Representative under this Agreement or the Escrow Agreement, including the exercise of the power to: (i) execute any amendment or waiver of this Agreement or the Escrow Agreement, and exercisingexecute and deliver any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement and the Escrow Agreement, on behalf (ii) give and receive notices and communications under this Agreement and the Escrow Agreement; (iii) object to claims for indemnification made by Parent under this Article VIII; (iv) agree to, negotiate, enter into settlements and compromises of, and comply with Orders with respect to any dispute arising or claims for indemnification made by Parent under this Agreement; (v) receive the Shareholders’ Representative Fund Amount, to hold such funds, together with any funds otherwise distributable for the account of all 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 rights “Shareholders’ Representative’s Fund”) in a separate account solely within the Shareholders’ Representative’s control and powers 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 hereunder 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 thereunderCompany may prior to the Closing agree in writing, provided further that at any such time 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, the Shareholders’ Representative may return such excess to the Company Indemnifying Parties in such agreed manner; and (vi) take all actions necessary or appropriate in the good faith judgment of the Shareholders’ Representative for the accomplishment of the foregoing. Without limiting the generality of Notwithstanding the foregoing, the Shareholders' Representative shall not be authorized to agree to any amendment or modification of this Agreement that would have full 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 Escrow Account, Shareholders’ Representative Fund, or both would not require such approval. The power of attorney granted in this Section 8.09 by Company Indemnifying Parties to the Shareholders’ Representative is coupled with an interest and authorityis irrevocable, for may 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 on behalf shall survive the death or incapacity of any Company Indemnifying Party. The identity of the Shareholders, to take all actions’ Representative and the terms of the agency may be changed, and a successor Shareholders’ Representative may be appointed, from time to exercise such rights, power and authority, in connection with time by 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 Company Indemnifying Parties whose aggregate Pro Rata Portions of 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 AgreementEscrow Account exceed 50%. Further, the Transaction Documents or Shareholders’ Representative may resign at any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating 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 transactions contemplated hereby or therebyend of such period, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required resigning Shareholders’ Representative shall be entitled to do or exercise under Article IX, and in connection with any Claim against or by so. Any successor to the Shareholders under this AgreementShareholders’ Representative shall succeed the former Shareholders’ Representative as Shareholders’ Representative hereunder. The appointment and agency No bond shall be required of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions or any person delegated any of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 ’ Representative’s rights or appropriate by the Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a(“Delegees”).

Appears in 1 contract

Samples: Agreement and Plan of Merger (DG FastChannel, Inc)

Shareholders’ Representative. Each Shareholder hereby irrevocably appoints Axxxxx X. Xxxxxxx, Xx. (athe “Shareholders’ Representative”) By as the agent of such Shareholder for all purposes relating to or in connection with any transaction contemplated by or relating to this Agreement and to be carried out prior to, at or after the Closing including (i) approving any modifications or amendments to this Agreement, (ii) making decision with respect to the determination of the Net Working Capital Adjustment Amount, (iii) the appointment of the Escrow Agent and execution and delivery of the Escrow Agreement, (iv) entering into any settlement or submitting the dispute to the Independent Accountant, (v) taking any action that may be necessary or desirable, as determined by the Shareholders’ Representative, in its sole discretion, in connection with the termination of this Agreement as provided in Article XII, (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 and all notices, documents or certificates to be executed by the Shareholders or the Companies in connection with this Agreement and the transactions contemplated hereby; (viii) making any payments or paying any expenses under or in connection with this Agreement, subject to (ix) granting any consent or approval on behalf of the terms of Section 10.15(b), each Shareholders or the Companies under this Agreement; and (x) resolving disputes with the Purchaser that arise under this Agreement including disputes regarding indemnification claims by any Party. Each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act herby appoints the Shareholders’ Representative as such Shareholder's agent, representative, proxy ’s true and lawful attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentsagent, and exercising, on behalf of all Shareholders, the rights and with full powers of the Shareholders hereunder substitution and thereunder. Without limiting the generality of the foregoingresubstitution, the Shareholders' Representative shall have full power in such Shareholder’s name, place and authoritystead, for in any and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authoritycapacities, in connection with the transactions contemplated hereby by this Agreement, granting unto said attorney-in-fact and thereby and to exercise such rightsagent, full power and authority as are incidental thereto, to represent any Shareholder from do and after the Closing, to give or receive any notices required or permitted perform each and every act and thing requisite and necessary 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder done in connection with this Agreement 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 settle all such Claims on behalf of all rely upon the Shareholders agency created hereby and exercise releases the Purchaser and its Affiliates from any and all rights that the Shareholders are permitted liability to such Shareholder of whatever nature arising out of or required relating to do or exercise under Article IXsuch agency, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the same extent 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 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 though any act committed or appropriate omitted by the Shareholders' Representative which shall have the same force and effect as if performed pursuant to such agency had been committed or omitted 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 1 contract

Samples: Stock Purchase Agreement (Omega Healthcare Investors Inc)

Shareholders’ Representative. (a) By Each Seller has constituted, appointed and empowered effective from and after the execution and delivery date of this Agreementsuch consent, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act Person designated as such Shareholder's agentby the Board as the Shareholders’ Representative, representative, proxy for the benefit of the Sellers and the exclusive agent and attorney-in-fact (to act on behalf of each Seller, in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting connection with and to facilitate the consummation of the transactions contemplated by hereby, which shall include the power and authority to: (i) enforce and protect the rights and interests of the Sellers 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 and the Transaction Documentstransactions provided for herein, and exercising, on behalf of to take any and all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, actions which the Shareholders' Representative shall have full power and authority, believes are necessary or appropriate under this Agreement for and on behalf of the ShareholdersSellers including, to take all actionsconsenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and to exercise their respective Representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert any Shareholder from and claim or institute any Action; (B) 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 ClosingClosing Date, to give the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive any notices required or permitted to be given hereunder and thereunder, to accept service of 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, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such Third Party Claim or amendments 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 claims asserted under this Agreement; and (E) 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 Sellers arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the Transaction Documents part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or any 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, statementsletters and other writings, noticesand, approvalsin general, extensions 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 waivers relating proper or convenient in connection with or to carry out the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed ; (iv) to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, including, at the expense of the Shareholders, to retain attorneysengage special counsel, accountants and other advisors to assist him and incur such other expenses on behalf of the Sellers in the performance of his duties hereunder. All connection with any matter arising under this Agreement, which such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have is authorized to pay from the right Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions amendments of this Section 10.15(a)Agreement or the Escrow Agreement.

Appears in 1 contract

Samples: Share Purchase Agreement (Magellan Health Inc)

Shareholders’ Representative. (a) By the execution and delivery of executing this AgreementAgreement or a Shareholder Joinder, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of consummating the transactions contemplated by this Agreement Agreement, or participating in such transactions and receiving the Transaction Documentsbenefits thereof, including the right to receive the consideration payable in connection with such transactions, each Shareholder irrevocably authorizes and exercising, on behalf designates the Representative as the representative and agent of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actionssuch Shareholder, and to exercise as such rightsShareholder’s true and lawful attorney-in-fact, power and authority, in connection with the transactions contemplated hereby and thereby and to exercise such rights, full power and authority as are incidental theretoin such Shareholder’s name, 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of for all Claims against any Shareholder purposes in connection with this Agreement and to settle all such Claims any agreements ancillary hereto, including: (i) accepting notices on behalf of the Shareholders under this Agreement and any Transaction Document; (ii) providing any consent, certificate, instrument, receipt or approval on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree thatmaking, as to all matters arising enforcing or settling any claim under this Agreement and the Transaction Documents after the Closing DateArticles 1, the Shareholders' Representative shall act for and 5, 6, 7 on behalf of the Shareholders, ; and to the extent Shareholders are asked to execute documents (iii) taking any and to take all other actions after the Closing and do not do so as promptly as possible when requesteddoing any and all other things provided in, the 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 Shareholders' Representative which shall have the same force and effect as if performed by the Shareholders themselves. When contemplated by, this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon to be performed by the Shareholders, such determination, action or event of Shareholder (to 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 10.15, 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 extent all of the other Shareholders based upon each Shareholder's are also required to perform) arising out of the transactions contemplated hereby or thereby as Representative, in its sole discretion, 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; provided that for the avoidance of doubt, the Representative consenting to all or a portion of an indemnification claim under Article 7, or entering into a settlement agreement with respect thereto, in accordance with the aggregate Gross Closing Consideration. Under procedures, limitations of liability and Representative authority set forth in this Section 10.15(a), however, the Shareholders' Representative Agreement shall not have be deemed to implicate the right foregoing clause (y) of the previous sentence or obligation torequire 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 final, non-appealable judgment that Representative has engaged in willful misconduct or gross negligence in connection herewith, in which case that Shareholder may, upon written notice to Buyer and shall notRepresentative, represent any Shareholder in Indemnification Claims involving any such Shareholder's severalrevoke the appointment) and will not be terminated by operation of law, as opposed to his joint, liability under Article IX; in any circumstance where whether by the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless death or incapacity of any provisions of this Section 10.15(a)Shareholder.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Liquidity Services Inc)

Shareholders’ Representative. (a) By the execution approving this Agreement and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement hereby, and/or participating in the Merger and receiving the Transaction Documentsbenefits thereof, including the right to receive the consideration payable in connection with the Merger, and exercising, on behalf without any further action of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf any of the Shareholders, Optionholders, or the Company, each Shareholder and Optionholder shall be deemed to take all actionshave 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 exercise such rightsdo any and all things and execute any and all documents which may be necessary, power and authority, in connection with convenient or appropriate to facilitate the consummation of the transactions contemplated hereby and thereby the exercise of all rights and to exercise such rightsthe performance of all obligations under this Agreement, power the Earn-Out Agreement, the Earn-Out Escrow Agreement (if any) and authority as are incidental theretothe Shareholders’ Representative Engagement Agreement, to represent any Shareholder from including: (i) receiving and after the Closing, to give or receive any forwarding of 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 communications pursuant to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Earn-Out Agreement and to settle all such Claims the Earn-Out Escrow Agreement (if any) and accepting service of process; (ii) giving or agreeing to, on behalf of all the Shareholders and exercise Optionholders, any and all rights that the Shareholders are permitted or required to do or exercise under Article IXconsents, waivers and in connection with any Claim against or amendments deemed by the Shareholders Shareholders’ Representative, in its reasonable and good faith discretion, to be necessary or appropriate under this Agreement. The appointment , the Earn-Out Agreement and agency 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' Representative is irrevocableShareholders and Optionholders, the Earn-Out Escrow Agreement, as and shall be deemed if required pursuant to be coupled with an interest. Execution the terms of this Agreement by the Shareholders shall constitute agreement Agreement; and (iv) with respect to be bound by the actions of the Shareholders' Representative taken hereunder any indemnification claims and thereunder. The Parties agree that, as to 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 Transaction Documents after Shareholders’ Representative on the Closing Dateother hand, provided that, in each case, the Shareholders' Representative shall not take any action adverse to any Shareholder or Optionholder unless such action is also taken proportionately with respect to the others. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act for and on behalf of the Shareholders and Optionholders, except as expressly provided herein, in the Earn-Out Agreement and in the Shareholders’ Representative Engagement Agreement, and to the extent Shareholders for purposes of clarity, there 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 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 Shareholders' Representative which shall have 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 no obligations 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where other Ancillary Agreement, schedule, exhibit or the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).Disclosure Schedules. 91

Appears in 1 contract

Samples: Agreement and Plan of Merger (Sorrento Therapeutics, Inc.)

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Shareholders’ Representative. (a) By Each Shareholder hereby irrevocably appoints the execution and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act Shareholders Representative as such Shareholder's agent, representative, proxy agent and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose each such Shareholder, for and on behalf of effecting the consummation of the transactions contemplated by each such Shareholder, with full power and authority to represent each Shareholder and such Shareholder’s successors and assigns with respect to all matters arising under this Agreement and the Transaction DocumentsEscrow Agreement, and exercising, on behalf of all Shareholders, the rights and powers of actions taken by the Shareholders hereunder Representative under this Agreement or the Escrow Agreement will be binding upon each such Shareholder and thereundersuch Shareholder’s successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the foregoing, the Shareholders' Shareholders Representative shall have has full power and authority, on behalf of each Shareholder and such Shareholder’s successors and assigns, to interpret the terms and provisions of this Agreement, to dispute or fail to dispute any Liability Claim under this Agreement or the Escrow Agreement, to negotiate and compromise any dispute that may arise under this Agreement or the Escrow Agreement and to sign any releases or other documents with respect to such dispute. A Shareholder will be deemed a party or a signatory to any agreement, document, instrument or certificate for which the Shareholders Representative signs on behalf of such Shareholder. All decisions, actions and instructions by the Shareholders Representative, including the defense or settlement of any claims for which the Shareholders may be required to indemnify the Buyer Indemnitees pursuant to ARTICLE IX, will be conclusive and binding on each Shareholder and no Shareholder has the right to object, dissent, protest or otherwise contest the same. The Shareholders jointly and severally agree to pay, and to hold harmless the Buyer Indemnitees from and against, any Liabilities or losses that the Buyer Indemnitees may suffer or sustain as the result of any claim by any Person that an action taken by the Shareholders Representative on behalf of the Shareholders is not binding on, or enforceable against, the Shareholders. Buyer has the right to rely conclusively on the instructions and decisions of the Shareholders Representative as to the settlement of any claims for indemnification by Buyer pursuant to ARTICLE IX, 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 or any Shareholder from and after the Closing, to give or receive any notices other actions 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or taken by the Shareholders under this AgreementRepresentative hereunder, and no party hereto will have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Shareholders Representative. The appointment and agency of the Shareholders' Shareholders Representative is irrevocable, and shall be deemed to be an agency coupled with an interest. Execution of this Agreement interest and is irrevocable and any action taken by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and pursuant to the extent 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 Shareholders appoint the Shareholders' Representative as their limited irrevocable attorney authority granted in fact to execute all such documents and to take all such actions deemed necessary or appropriate by the Shareholders' Representative which shall have 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 Section 11.2 is conclusive and binding upon the Shareholdersexecutors, such determinationheirs, action legal representatives and successors of each Shareholder, and any references in this Agreement to a Shareholder or event of the Shareholders means and includes the successors to 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 ’ rights hereunder, whether pursuant to carry into effect the provisions of this Section 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), howevertestamentary disposition, the Shareholders' Representative shall not have the right laws of descent and distribution or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)otherwise.

Appears in 1 contract

Samples: Stock Purchase Agreement (Steris Corp)

Shareholders’ Representative. (a) By The Company Shareholders hereby irrevocably constitute and appoint Mr. Xxxxx Xxxxx (the execution “Shareholders’ Representative”) as the true and delivery of this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy lawful agent and attorney-in-fact (of the Company Shareholders, with full powers of substitution to act individually in his capacity as Shareholders' Representative) after the Closing Date for name, place and stead of the purpose of effecting the consummation of Company Shareholders with respect to the transactions contemplated by this Agreement and the other Transaction Documents, as the same may be from time to time amended, and exercisingto individually do or refrain from doing all such further acts and things, on behalf of and to execute all Shareholderssuch documents, the rights and powers as he shall deem necessary or appropriate in connection with any of the Shareholders hereunder and thereundertransactions contemplated hereby. Without limiting the generality of the foregoing, the Shareholders' Representative shall have the full power and authorityexclusive authority to (i) agree with Buyer with respect to any matter or thing required or deemed necessary by the Shareholders’ Representative in connection with the provisions of this Agreement calling for the agreement of the Company Shareholders, for give and receive notices on behalf of the Company Shareholders, and act on behalf of the Company Shareholders in connection with any matter as to which the Company Shareholders or Principal Shareholders are or may be obligated under this Agreement or any of the other Transaction Documents, all in the absolute discretion of the Shareholders’ Representative, (ii) execute the Escrow Agreement on behalf of the Company Shareholders, (iii) in general, do all things and perform all acts, including executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Shareholders’ Representative to be necessary or advisable in connection with, this Agreement or any Transaction Document, including any amendments hereto or thereto and (iv) take all actions, and to exercise such rights, power and authority, actions necessary or desirable in connection with the transactions contemplated hereby defense or settlement of any indemnification claims pursuant to Article VIII (including the selection of counsel) and thereby performance of obligations of the Company Shareholders or the Shareholders’ Representative, including to withhold funds for satisfaction of expenses or other liabilities or obligations or to withhold funds for potential indemnification claims made hereunder. All decisions by the Shareholders’ Representative shall be binding upon all the Company Shareholders, and no Company Shareholder shall have the right to object, dissent, protest or otherwise contest the same. The Shareholders’ Representative may communicate with any Company Shareholder or any other Person concerning his responsibilities hereunder, but is not required to do so. The Shareholders’ Representative has a duty to serve in good faith the interests of the Company Shareholders as appropriate, 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 perform his designated role under this Agreement, but, except as specifically provided herein, the Transaction Documents or Shareholders’ Representative shall have no financial liability whatsoever to any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers Company Shareholder relating to his service hereunder (including any action taken or omitted to be taken), except that he shall be liable for harm which he directly causes by an act of willful misconduct. Buyer shall be entitled to rely exclusively upon any communication given by the transactions contemplated hereby Shareholders’ Representative and shall not be liable in any manner whatsoever for any action taken or therebynot taken in reliance upon the Shareholders’ Representative. Any payments made, at the Shareholders’ Representative’s request and instruction, by Buyer to conduct or cease the Shareholders’ Representative pursuant to conduct the defense terms of all Claims against this Agreement shall fully discharge Buyer from any Shareholder liability to the Company Shareholders in connection with this Agreement such payment, as fully and completely as if such payment had been made directly to settle all such Claims the Company Shareholders. Buyer hereby agrees to accept and rely on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 if it were the action of a Company Shareholder or appropriate by the Company Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 1 contract

Samples: Stock Purchase Agreement (SWIFT TRANSPORTATION Co)

Shareholders’ Representative. (a) By virtue of the execution and delivery adoption of this Agreement, subject each Shareholder hereby initially appoints, as of the date hereof, the Principal Shareholder as the Shareholders’ Representative. The Shareholders’ Representative shall have full power and authority to take all actions under this Agreement and the Escrow Agreements that are to be taken by the Shareholders’ Representative. The Shareholders’ Representative shall take any and all actions which he, she or it believes are necessary or appropriate under this Agreement and the Escrow Agreements, including, without limitation, executing the Escrow Agreements as Shareholders’ Representative, giving and receiving any notice or instruction permitted or 63 required under this Agreement or the Escrow Agreements by the Shareholders’ Representative, interpreting all of the terms and provisions of this Agreement and the Escrow Agreements, making payments, authorizing payments to be made with respect hereto or thereto, obtaining reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Shareholders’ Representative in connection with this Agreement or the Escrow Agreements, defending all claims arising pursuant to Section 10.15(b2.6 (a “Working Capital Claim”), each Shareholder irrevocably appointsdefending all indemnity claims against the Escrow Amount pursuant to Section 9.2 (an “Indemnity Claim”), authorizes consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent, Buyer and directs Xxxxxx X. Xxxxxxx to act as their respective agents regarding such Shareholder's agentclaims, representativedealing with Parent, proxy Buyer and attorney-in-fact (the Escrow Agent under this Agreement, taking any and all other actions specified in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions or contemplated by this Agreement and or the Transaction DocumentsEscrow Agreements, and exercisingengaging counsel, on behalf of all Shareholders, accountants or other representatives in connection with the rights and powers of the Shareholders hereunder and thereunderforegoing matters. Without limiting the generality of the foregoing, the Shareholders' Representative shall have the full power and authority, for and on behalf of the Shareholders, authority 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of interpret all the Shareholders terms and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency provisions of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, Escrow Agreements and to the extent Shareholders are asked consent to execute documents and to take other actions after the Closing and do not do so any amendment hereof or thereof in his, her or its capacity as promptly as possible when requested, the 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)’ Representative.

Appears in 1 contract

Samples: Share Purchase Agreement (Irobot Corp)

Shareholders’ Representative. (a) By In addition to the other rights and authority granted to the Shareholders’ Representative elsewhere in this Agreement and except as expressly provided herein, by participating in the execution and delivery of this Agreement and receiving the benefits thereof, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement, subject to each Company Shareholder (which, for the terms purpose of this Section 10.15(b)12.11, shall also mean each Shareholder MKD BVI Shareholder) hereby irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act appoints Mxxx-Xxxx Xxxxx as such Shareholder's agent, representative, proxy and attorney-in-fact (and representative to act for and on behalf of such Company Shareholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in his capacity 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 to execute all such documents, as the Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation ’ Representative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement 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 Transaction Documentsdeath, 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 exercising, agreed that all such rights shall only be permitted to be exercised by the Shareholders’ Representative on behalf of all the Company Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have has full power and authority, for and on behalf of each Company Shareholder and such Company Shareholder’s successors and assigns, to: (i) interpret the Shareholders, terms and provisions of this Agreement and the documents to take all actions, be executed and to exercise such rights, power and authority, delivered by the Company Shareholders in connection with the transactions contemplated hereby and thereby and to exercise such rightsherewith, 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 (ii) execute and deliver, or hold in escrow deliver and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other receive deliveries of all agreements, certificates, stock powers, statements, notices, approvals, extensions extensions, waivers, undertakings, amendments, and other documents required or waivers relating permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) 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 such claims, and to 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 any way to the transactions contemplated hereby 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 thereby, to conduct waived and (x) take all actions necessary or cease to conduct appropriate in the defense judgment of all Claims against any Shareholder the Shareholders’ Representative on behalf of the Company Shareholders in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).75

Appears in 1 contract

Samples: Business Combination Agreement (Cetus Capital Acquisition Corp.)

Shareholders’ Representative. (a) By the execution and delivery of executing this Agreement, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes constitutes and directs appoints Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the true and lawful agent and attorney-in-fact (in his capacity hereinafter referred to as Shareholdersthe "SHAREHOLDERS' RepresentativeREPRESENTATIVE") after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documentseach Shareholder, and exercising, on behalf of all Shareholders, the rights and with full powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholderssubstitution, to take all actionsact in the name, place and to exercise such rights, power and authority, in connection stead of each Shareholder 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating respect to the transactions contemplated hereby or therebyin accordance with the provisions of this Agreement and the Escrow Agreement, including, without limitation, to conduct grant waivers on behalf of each Shareholder or cease to conduct the defense of all Claims against any Shareholder in connection with enter into amendments to this Agreement and to settle do or refrain from doing all such Claims on behalf of further acts and things, to execute all the Shareholders such certificates, instruments and exercise any and all rights that the Shareholders are permitted other documents, as such Shareholders' Representative may deem necessary or required to do or exercise under Article IX, and appropriate in connection with any Claim against or by of the Shareholders transactions contemplated under this Agreement or the Escrow Agreement. The appointment , to give and agency receive notices and communications, to authorize delivery to Purchaser of the Escrowed Shares or other property from the Escrow Account in satisfaction of claims by Purchaser, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Shareholders' Representative is irrevocable, and shall for the accomplishment of the foregoing. Such agency may be deemed to be coupled with an interest. Execution of this Agreement changed by the Shareholder from time to time upon not less than thirty days prior written notice to 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 to the identity of the substituted shareholders' representative. Any vacancy in the position of Shareholders' Representative may be filled by approval of the holders of a majority in interest of the Escrow Account. The Shareholders shall constitute agreement agree that any such action, if material to be bound by the actions rights and obligations of the Shareholders in the reasonable judgment of the Shareholders' Representative Representative, shall be taken hereunder and thereunderin the same manner with respect to all Shareholders, unless otherwise agreed by each Shareholder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 appointment of the Shareholders' Representative shall be conclusive deemed coupled with an interest and binding shall be irrevocable, and Purchaser, Parent and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of the Shareholders' Representative as the act of the Shareholders in all matters referred to in this Agreement. The Shareholders' Representative shall have all such incidental powers not be liable for any act done or omitted hereunder as may be necessary or desirable to carry into effect the provisions of this Section 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have while acting in good faith and in the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless exercise of any provisions of this Section 10.15(a)reasonable judgment.

Appears in 1 contract

Samples: Share Purchase Agreement (Ticketmaster Online Citysearch Inc)

Shareholders’ Representative. (a) By the execution and delivery adoption or causing the adoption of this Agreement, subject to the approval of the principal terms of Section 10.15(b)the Transactions, and the consummation of the Transactions or participating in the Transactions and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Transactions, each Seller shall be deemed to have constituted, appointed and empowered effective from and after the date of such consent, Shareholder irrevocably appointsRepresentative Services LLC as the Shareholders’ Representative, authorizes for the benefit of the Sellers and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy the exclusive agent and attorney-in-fact (to act on behalf of each Seller, for all purposes in his capacity as Shareholders' Representative) after connection with and to facilitate the Closing Date for consummation of the purpose Transactions and the execution of effecting the Ancillary Agreements and the consummation of the transactions contemplated by thereby, which shall include the power and authority to: (i) enforce and protect the rights and interests of the Sellers 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 and the Transaction DocumentsTransactions, and exercising, on behalf of to take any and all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, actions which the Shareholders' Representative shall have full power and authority, believes are necessary or appropriate under this Agreement for and on behalf of the ShareholdersSellers including, to take all actionsconsenting to, compromising or settling any such claims, conducting negotiations with Buyer and, after the Closing Date, the Company and to exercise their respective Representatives regarding such rightsclaims, power and authorityand, in connection with the transactions contemplated hereby and thereby and to exercise such rights, power and authority as are incidental theretotherewith, to represent (A) assert any Shareholder from and claim or institute any Action; (B) 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 ClosingClosing Date, to give the Company or any other Person, or by any Governmental Entity against the Shareholders’ Representative and/or any of the Sellers, and receive any notices required or permitted to be given hereunder and thereunder, to accept service of 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, to execute and delivergive receipts, or hold in escrow releases and releasedischarges with respect to, any exhibits such Third Party Claim or amendments 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 claims asserted under this Agreement; and (E) 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 Sellers arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the Transaction Documents part of the Shareholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or any 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, statementsletters and other writings, noticesand, approvals, extensions or waivers relating to the transactions contemplated hereby or therebyin general, to conduct 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 cease to conduct the defense of all Claims against any Shareholder proper or convenient in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 out the provisions of this Section 10.15, including, at the expense of the Shareholders, Transactions; (iv) to retain attorneysengage special counsel, accountants and other advisors to assist him and incur such other expenses on behalf of the Sellers in the performance of his duties hereunder. All connection with any matter arising under this Agreement, which such expenses shall be shared pro rata among all of the Shareholders based upon each Shareholder's portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have is authorized to pay from the right Expense Holdback Amount; and (v) subject to Section 10.8, to negotiate and execute any waivers or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions amendments of this Section 10.15(a)Agreement or the Ancillary Agreements.

Appears in 1 contract

Samples: Share Purchase Agreement (H&r Block Inc)

Shareholders’ Representative. (a) By executing and delivering a Letter of Transmittal or by virtue of consummation of the execution and delivery of this Agreement, subject to the terms of Section 10.15(b)Xxxxxx Transaction, each Xxxxxx Shareholder hereby irrevocably appointsconstitutes and appoints GRHP Management, authorizes LLC as its true and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and lawful attorney-in-fact and agent (in his capacity as the “Shareholders' Representative) after the Closing Date for the purpose with full power of effecting 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 by 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 Transaction DocumentsXxxxxx Shareholders, as contemplated by this Agreement; (ii) receiving and exercisingforwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or agreeing to, on behalf of all the Xxxxxx Shareholders, the rights any and powers of the Shareholders hereunder all consents, waivers and thereunder. Without limiting the generality of the foregoing, amendments deemed by the Shareholders' Representative shall have full power ’ Representative, in its reasonable and authority, for and on behalf of the Shareholdersgood faith discretion, 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 be necessary 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with 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 settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing DateAgreement, the Shareholders' Representative shall act for and (A) disputing or refraining from disputing, on behalf of the Shareholders, and each Xxxxxx Shareholder relative to the extent Shareholders are asked any amounts to execute documents and to take other actions after the Closing and do not do so as promptly as possible when requested, the 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 be received by the Shareholders' Representative which shall have the same force and effect as if performed by the Xxxxxx Shareholders themselves. When under this Agreement or any Transaction Document provides that a determination agreements contemplated hereby, or any claim made by Subversive under this Agreement, (B) negotiating and compromising, on behalf of each Xxxxxx Shareholder, 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 Xxxxxx Shareholder, any settlement agreement, release or other action document with respect to such dispute or event is conclusive remedy, except in each case with respect to a dispute between any Xxxxxx Shareholder on the one hand and binding upon the Shareholders’ Representative on the other hand, such determinationprovided that, action or event of in each case, the Shareholders' Representative shall be conclusive and binding upon not take any action adverse to any Xxxxxx Shareholder unless such action is also taken proportionately with respect to the Shareholdersothers. The Shareholders' Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right agree to any amendment to this Agreement or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless waiver of any its provisions of this Section 10.15(a).that would

Appears in 1 contract

Samples: Transaction Agreement (TPCO Holding Corp.)

Shareholders’ Representative. (a) By The Company and the execution Significant Shareholders hereby authorize, direct and delivery of this Agreement, subject to appoint the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx Shareholders' Representative to act as such Shareholder's sole and exclusive agent, representative, proxy and attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation and representative of the transactions contemplated by Significant Shareholders and the other holders of Company Shares, Company Options and Warrants, with full power of substitution with respect to all matters under this Agreement and the Transaction DocumentsEscrow Agreement, including, without limitation, determining, giving and exercisingreceiving notices and processes hereunder and thereunder, receiving certain distributions to or for the 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 foregoing. The Shareholders' Representative shall have the sole and exclusive right on behalf of all 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 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 rights right to take hereunder or thereunder, shall be taken only by the Shareholders' Representative, and powers no Significant Shareholder acting on its own shall be entitled to take any such action. All deliveries and payments to be made by the Buyer to the Shareholders' Representative pursuant to Sections 2.3(c), 2.5(d) and 2.8 above shall be made on behalf of the Shareholders hereunder holders of Company Shares, Company Options and thereunderWarrants and shall constitute full performance of the obligations of the Buyer to the Shareholders' Representative pursuant to such sections with respect to such amounts. Without limiting The Buyer shall not be liable for allocation of particular deliveries and payments of such amounts by the generality of Shareholders' Representative. Notwithstanding the foregoing, the Shareholders' Representative shall have full power and authority, for and not take any action on behalf of the Shareholders, to take all actions, and to exercise Significant Shareholders without the approval of 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, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all Claims against any Shareholder in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or action by the Shareholders under this Agreement. The appointment and agency a majority of the Significant Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Teleflex Inc)

Shareholders’ Representative. The Shareholders hereby irrevocably appoint Xxxxxx Xxxxxxxx (athe “Shareholders’ Representative”) By as the execution and delivery of this Agreementrepresentative, subject to the terms of Section 10.15(b), each Shareholder irrevocably appoints, authorizes and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representativeproxy, proxy and attorney-in-fact for all the Shareholders for all purposes under this Agreement, including the full power and authority on the Shareholders’ behalf: (in his capacity as Shareholders' Representativei) after the Closing Date for the purpose of effecting the consummation of to consummate the transactions contemplated by this Agreement, including the execution and delivery of the agreements, certificates, instruments, and other documents contemplated hereby or executed or delivered in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of 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, the Transaction Documents or any other agreements, certificates, stock powersinstruments, statements, notices, approvals, extensions or waivers relating to the transactions and documents contemplated hereby or therebyexecuted or delivered in connection herewith, (iii) to conduct execute and deliver any amendment or cease waiver to conduct this Agreement or any of the defense other agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection herewith (without the prior approval of the Shareholders), (iv) to take all Claims against any Shareholder other actions to be taken by or on behalf of the Shareholders in connection with this Agreement (including the exercise of any rights and the performance of any obligations pursuant to settle all such Claims on behalf of all Article 6) and the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IXother agreements, certificates, instruments, and documents contemplated hereby or executed or delivered in connection with any Claim against or by the Shareholders under this Agreementherewith. The appointment Shareholders further agree that such agency and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be proxy are coupled with an interest. Execution of this Agreement by , are therefore irrevocable without the Shareholders shall constitute agreement to be bound by the actions consent of the Shareholders' Representative taken hereunder ’ Representative, and thereundershall survive the death, incapacity, bankruptcy, dissolution, or liquidation of any Shareholder. The Parties agree that, as to all matters arising under this Agreement All decisions and the Transaction Documents after the Closing Date, actions by the Shareholders' Representative shall act for and on behalf be binding upon all of the Shareholders, and to the extent 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 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 Shareholders' Representative which no Shareholder shall have the same force and effect as if performed by right to object, dissent, protest, or otherwise contest 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 Shareholderssame. The Shareholders' Representative shall have all such incidental powers as may be necessary no Liability in respect of any action, claim, or desirable to carry into effect the provisions of this Section 10.15, including, at the expense of proceeding brought against 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, ’ Representative by any Shareholder if the Shareholders' Representative shall not have the right took or obligation to, and shall not, represent omitted taking any Shareholder action in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)good faith.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Applied Films Corp)

Shareholders’ Representative. (a) By the execution executing and delivery of delivering this Agreement, subject to the terms of Section 10.15(b), each Shareholder hereby irrevocably appointsagrees that the Shareholders’ Representative shall be entitled to take any action under Article III and Article XIV of this Agreement without consultation with, authorizes and directs Xxxxxx X. Xxxxxxx to act as notice to, or agreement by, such Shareholder's agent, representativeincluding the exercise of the power to (i) agree to, proxy negotiate, enter into settlements and attorney-in-fact compromises of and comply with orders of courts with respect to claims under this Article XIV of this Agreement or the Escrow Agreement, (ii) resolve any claims under this Article XIV of this Agreement or the Escrow Agreement, and (iii) take all actions necessary in his capacity as the judgment of the Shareholders' Representative) after the Closing Date ’ Representative for the purpose of effecting the consummation accomplishment of the transactions contemplated by foregoing and all of the other terms, conditions and limitations of this Agreement and the Transaction Documents, Escrow Agreement and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, for and on behalf of the Shareholders, to take all actions, and to exercise such rights, power and authority, in connection with the transactions contemplated hereby and thereby thereby. Each Shareholder will be bound by all actions taken by the Shareholders’ Representative in connection with this Agreement or the Escrow Agreement and the transactions contemplated hereby and thereby. The Shareholders’ Representative will incur no liability to any Shareholder (i) with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to exercise such rightshave been signed by the proper Person (and shall have no responsibility to determine the authenticity thereof), power and authority as are incidental thereto, to represent nor (ii) for any Shareholder from and after the Closing, to give other action 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 inaction taken pursuant to this Agreement, except for its own willful misconduct or bad faith. In all questions arising under this Agreement or the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to Escrow Agreement and the transactions contemplated hereby or thereby, the Shareholders’ Representative may rely on the advice of counsel, and the Shareholders’ Representative will not be liable to conduct or cease to conduct the defense of all Claims against any Shareholder for anything done, omitted or suffered in connection with this Agreement and to settle all such Claims on behalf of all the Shareholders and exercise any and all rights that the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders under this Agreement. The appointment and agency of the Shareholders' Representative is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Shareholders shall constitute agreement to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as to all matters arising under this Agreement and the Transaction Documents after the Closing Date, the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions of this Section 10.15(a)good faith.

Appears in 1 contract

Samples: Asset Purchase Agreement (Matthews International Corp)

Shareholders’ Representative. (a) By Effective upon and by virtue of the execution vote of the holders of Company Stock approving and delivery adopting this Agreement and the Merger, and without any further act of this Agreementany of the holders of the Company Stock, subject to the terms Shareholders’ Representative shall be hereby appointed as the representative of Section 10.15(b), each Shareholder irrevocably appoints, authorizes the holders of Company Stock and directs Xxxxxx X. Xxxxxxx to act as such Shareholder's agent, representative, proxy and the attorney-in-fact (in his capacity as Shareholders' Representative) after the Closing Date for the purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Shareholders, the rights and powers of the Shareholders hereunder and thereunder. Without limiting the generality of the foregoing, the Shareholders' Representative shall have full power and authority, 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 Escrow Fund under Articles 2 and 10 of this Agreement and (ii) any amendments to the Escrow Agreement; provided, however, that any amendment of the 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, 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 make any Shareholder from and after the Closing, to give or receive any notices decisions required or permitted to be given hereunder taken by the Shareholders’ Representative under the Escrow Agreement and thereunderthis Agreement, including the exercise of the power to accept service (i) agree to, negotiate, enter into settlements and compromises of, commence any suit, action or proceeding, and comply with orders of process courts with respect to, claims by any Parent Indemnified Party against the Escrow Fund under Articles 2 and 10 of this Agreement, (ii) litigate, resolve, settle or compromise any dispute that may arise pursuant to Section 5 of the Escrow Agreement, and (iii) take all actions necessary 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 any Shareholders, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, each former shareholder of the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating Company with respect to the transactions contemplated hereby disposition, settlement or thereby, to conduct or cease to conduct the defense other handling of all Claims claims against any Shareholder in connection with the Escrow Fund under this Agreement and to settle all such Claims on behalf related rights or obligations of all the Shareholders and exercise any and all rights that former shareholders of the Shareholders are permitted or required to do or exercise under Article IX, and in connection with any Claim against or by the Shareholders Company arising under this Agreement. The appointment Shareholders’ Representative will also have sole authority and agency power to act on behalf of each former shareholder of the Company with respect to any amendments to the Escrow Agreement. The Shareholders' Representative is irrevocableshall use commercially reasonable efforts, and shall be deemed based on contact information available to be coupled the Shareholders’ Representative, to keep the former shareholders of the Company reasonably informed with an interest. Execution of this Agreement by the Shareholders shall constitute agreement respect to be bound by the actions of the Shareholders' Representative taken hereunder and thereunder. The Parties agree that, as pursuant to all matters arising the authority granted the Shareholders’ Representative under this Agreement and Agreement. Each former shareholder of the Transaction Documents after the Closing Date, Company shall promptly provide written notice to the Shareholders' Representative shall act for and on behalf of the Shareholders, and to the extent 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 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 Shareholders' Representative which shall have 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 10.15, 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 portion of the aggregate Gross Closing Consideration. Under this Section 10.15(a), however, the Shareholders' Representative shall not have the right or obligation to, and shall not, represent any Shareholder in Indemnification Claims involving any such Shareholder's several, as opposed to his joint, liability under Article IX; in any circumstance where the Shareholders do not have joint liability, each individual Shareholder shall represent his own interests, regardless of any provisions change of this Section 10.15(a)address of such shareholder.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (Affymetrix Inc)

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