Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue of the Merger, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest. (b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10.
Appears in 1 contract
Shareholders’ Representative. (a) At least fifteen days By virtue of the adoption of this Agreement and the approval of the Acquisition by the Shareholders, the Shareholders hereby designate and appoint MDS Capital Corp. as their representative for the purposes set forth in this Section 1.3 (the "Shareholders' Representative"). By signing this Agreement, MDS Capital Corp. accepts the foregoing designation and appointment by the Shareholders as the Shareholders' Representative.
(b) The Shareholders hereby authorize the Shareholders' Representative (A) to execute the Escrow Agreement on behalf of the Shareholders as Shareholders' Representative; (B) to act as representative of the Shareholders in connection with any and all matters arising under the Escrow Agreement; (C) to take all action necessary in connection with the defense and/or settlement of any claims for which the Shareholders may be required to indemnify Cubist, the Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders' Agreement; (D) to give and receive, on behalf of the Shareholders, all notices required to be given under this Agreement, the Shareholders' Agreement and the Escrow Agreement; and (E) to take any and all additional action as is required, contemplated or permitted to be taken by the Shareholders' Representative on behalf of the Shareholders by the terms of this Agreement, the Shareholders' Agreement, the Escrow Agreement, the Plan of Arrangement or any of the other Acquisition Documents.
(c) In the event that the Shareholders' Representative becomes unable to perform his responsibilities hereunder or resigns from such position, the Shareholders holding, immediately prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue of the Merger, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted combined voting power of the Company Shares then outstanding immediately prior shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Shareholders' Representative for all purposes of this Agreement, the Escrow Agreement and the Shareholders' Agreement and the documents delivered pursuant hereto and thereto.
(d) All decisions and actions by the Shareholders' Representative, including without limitation any agreement between the Shareholders' Representative and Cubist relating to the Effective Time being referred defense or settlement of any claims for which the Shareholders may be required to herein as indemnify Cubist, Acquisition Sub and/or the "StockholdersCompany pursuant to the Escrow Agreement or the Shareholders' Representative"). Notwithstanding any statement contained in Agreement, shall be binding upon all of the Shareholders and no Shareholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By virtue of the adoption of this Agreement to and the contraryapproval of the Acquisition by the Shareholders, Parent may rely conclusively, each Shareholder agrees that:
(i) Cubist and Acquisition Sub shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as able to its due execution rely conclusively on the instructions and decisions of the validity and effectiveness of its provisions, but also Shareholders' Representative as to the truth and acceptability settlement of any information therein contained) executed and delivered claims for indemnification by Cubist, Acquisition Sub and/or the Company pursuant to the Escrow Agreement or the Shareholders' Agreement or any other actions required, permitted or contemplated to be taken by the Shareholders' Representative whether delivered in original formhereunder or under the Escrow Agreement, by facsimile the Shareholders' Agreement, the Plan of Arrangement or otherwise. The Stockholdersany other Acquisition Document and no party to any Acquisition Document shall have any cause of action against Cubist or Acquisition Sub to the extent Cubist or Acquisition Sub, as the case may be, has relied upon the instructions or decisions of the Shareholders' Representative;
(ii) all actions, decisions and instructions of the Shareholders' Representative shall not be liable to conclusive and binding upon all of the Shareholders and no Shareholder shall have any Stockholder with respect to right of recovery or cause of action of any kind whatsoever against the Shareholders' Representative for any action taken taken, decision made or omitted to be taken instruction given by any of the StockholdersShareholders' Representative acting (in his capacity as Stockholderssuch capacity) under this Agreement or any other Acquisition Document, except for fraud or willful breach of this Agreement by the Shareholders' Representative under Representative;
(iii) the provisions of this Section 1.3 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Shareholder may have in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.3 are inadequate; therefore, by such voteCubist, Acquisition Sub and/or the Company shall be entitled to temporary and permanent injunctive relief without any further actionthe necessity of proving damages if either Cubist, Acquisition Sub and/or the Company brings an action to enforce the provisions of this Section 1.3; and
(v) the provisions of this Section 1.3 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each holder Shareholder, and any references in this Agreement to a Shareholder or the Shareholders shall mean and include the successors to the Shareholder's rights hereunder, whether pursuant to testamentary disposition, the laws of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof descent and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interestdistribution or otherwise.
(bf) The holders of Converted Shares shall be solely responsible for all fees, costs All fees and expenses incurred by the StockholdersShareholders' Representative (including his outside advisors) shall be paid by the Shareholders in connection with serving as a representative proportion to their ownership of the holders of Converted Company Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed immediately prior to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10.
Appears in 1 contract
Shareholders’ Representative. (a) At least fifteen days By virtue of the the approval of the Merger and this Agreement by the Shareholders and without any further action of any of the Shareholders or the Company, Fortis Advisors LLC is hereby appointed as the exclusive agent and attorney-in-fact for each of the Shareholders, (i) to enter into and deliver the Escrow Agreement on behalf of each of the Shareholders, (ii) to authorize or object to delivery to the Purchaser of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, and (iii) to take all actions necessary or appropriate in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement. Notwithstanding the foregoing, the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders, except as expressly provided herein, in the Escrow Agreement and in the Shareholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Shareholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedules. The Shareholders’ Representative may resign at any time and such agency may be changed by the Shareholders as of immediately prior to the Effective TimeTime from time to time upon no less than twenty (20) days prior written notice to the Purchaser Parties and, if after the Closing, the Company shall appoint a Purchaser, provided, however, that the Shareholders’ Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue of the Merger, may not be irrevocably appointed Representative of the removed unless holders of Converted Shares and authorized and empowered to act for and on behalf at least 51% of any or all of the holders shares of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time being referred to herein as Time. Any vacancy in the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document Effective Time. Any removal or instruction (not only as to its due execution and the validity and effectiveness change of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' ’ Representative shall not be liable effective until written notice is delivered to any Stockholder with respect the Parent or Purchaser, as applicable. The immunities and rights to any action taken indemnification shall survive the resignation or omitted to be taken by any removal of the Stockholders' Shareholders’ Representative acting in his capacity as Stockholders' or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Shareholders’ Representative. Notices or communications to or from the Shareholders’ Representative under shall constitute notice to or from the Shareholders.
(b) Certain Shareholders have entered into an engagement agreement (the “Shareholders’ Representative Engagement Agreement”) with the Shareholders’ Representative to provide direction to the Shareholders’ Representative in connection with its services under this Agreement, unless the Escrow Agreement and the Shareholders’ Representative Engagement Agreement (such action Shareholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Shareholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Shareholders’ Representative Group”), shall be liable for any act done or omission results omitted hereunder, under the Escrow Agreement or under the Shareholders’ Representative Engagement Agreement while acting in good faith and in the exercise of reasonable business judgment. The Shareholders shall indemnify, defend and hold harmless the Shareholders’ Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or arises out of fraudamounts paid in settlement (collectively, the “Shareholders’ Representative Expenses”) incurred without gross negligence or willful misconduct or criminal action on the part of the Stockholders' Representative. Parent Shareholders’ Representative and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives arising out of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration or in connection with the Mergeracceptance or administration of its duties hereunder, under the Escrow Agreement or under the Shareholders’ Representative Engagement Agreement. Such Shareholders’ Representative Expenses may be recovered directly from the Shareholders. The Shareholders acknowledge that the Shareholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Shareholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Shareholders’ Representative shall not be required to take any action unless the Shareholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Shareholders’ Representative against the costs, expenses and liabilities which may be incurred by acceptance thereof and without any further actionthe Shareholders’ Representative in performing such actions. A decision, confirms such appointment and authority act, consent or instruction of the Stockholders' Shareholders’ Representative under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the stockholders of the Company Group and acknowledges shall be final, binding and agrees that such appointment is irrevocable conclusive upon each of the Shareholders and their successors as if expressly confirmed and ratified in writing by the Shareholders, and all defenses which may be available to any Shareholder to contest, negate or disaffirm the action of the Shareholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Shareholders’ Representative Engagement Agreement are waived. The powers, immunities and rights to indemnification granted to the Shareholders’ Representative Group hereunder: (i) are coupled with an interest.
(b) The holders of Converted Shares interest and shall be solely responsible for all feesirrevocable and survive the death, costs incompetence, bankruptcy or liquidation of any Shareholder and expenses incurred shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative any Shareholder of the holders whole or any fraction of Converted Shares hereunder and such feeshis, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted her or its interest in the Escrow Fund or the Company Earn-out Shares. At The Shareholders’ Representative shall be entitled to: (i) rely upon the Effective Time, at consideration spreadsheet provided to the election of Shareholders’ Representative by the Company, an amount not (ii) rely upon any signature believed by it to exceed $100,000 which would otherwise be distributed genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Disbursement Agent (applicable Shareholder or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10other party.
Appears in 1 contract
Shareholders’ Representative. (a) At least The Company hereby appoints the Shareholders’ Representative as the representative of the Designated Equity Holders for the purposes set forth herein and for purposes of enforcing all obligations of Parent that are for the benefit of the Designated Equity Holders after the Effective Time. If the Shareholders’ Representative should dissolve, disappear, liquidate, merge out of existence, enter into bankruptcy proceedings, or otherwise experience a similar event (or, in the case Shareholders’ Representative is an individual, die or become incapacitated) (each such event, a “Terminating Event”), its successor shall be appointed within fifteen (15) calendar days of such event by Persons holding a majority of the Shares as of immediately prior to the Effective Time, and any such successor shall be a Shareholder, an officer of a Shareholder or an Affiliate of a Shareholder and shall agree in writing to accept such appointment; provided that notwithstanding that a Terminating Event shall not have occurred, the Company Shareholders’ Representative shall have the right at any time to appoint a an entity wholly owned by the Shareholders’ Representative as his successor hereunder and an alternate Representative (the Shareholders Representative)such entity shall agree in writing to accept such appointment. The Shareholders choice of a successor Shareholders’ Representative shall, by virtue of the Merger, appointed in any manner permitted above shall be irrevocably appointed Representative of the holders of Converted Shares final and authorized and empowered to act for and on behalf of any or binding upon all of the holders Designated Equity Holders. The decisions and actions of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) any successor Shareholders’ Representative shall be, for all purposes, those of the Agreement Shareholders’ Representative as if originally named herein.
(b) A Terminating Event of any Designated Equity Holder shall not terminate the above named representative, as well as any subsequent representatives authority and agency of the Stockholders elected by vote Shareholders’ Representative.
(c) Notwithstanding the terms of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent the Shareholders’ Representative may rely conclusively, and shall (i) reduce the aggregate amount to be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as paid to the truth Designated Equity Holders hereunder for any costs, fees and acceptability of expenses that the Shareholders’ Representative and its Affiliates may incur in performing their duties hereunder, including any information therein contained) executed and delivered costs incurred by the Shareholders' ’ Representative whether delivered in original formconnection with Article X or Section 3.3 or (ii) delay all or a portion of any such payment to Designated Equity Holders to reserve for any such costs, by facsimile fees and expenses.
(d) By their acceptance of any payment pursuant to Article III of this Agreement, the Designated Equity Holders shall be deemed to have agreed that the Shareholders’ Representative shall have no liability (i) to any Designated Equity Holder in connection with performing its obligations hereunder, except to the extent the Shareholders’ Representative shall have acted maliciously in connection with the performance of its duties hereunder, and (ii) under this Agreement prior to the Effective Time.
(e) By their acceptance of any payments pursuant to Article III of this Agreement, the Designated Equity Holders shall be deemed to have authorized the Shareholders’ Representative, on their behalf and in their name, to:
(i) receive all notices or otherwisedocuments given or to be given to the Equity Holders pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or proceeding arising under this Agreement. The Stockholders' Shareholders’ Representative shall not be liable promptly forward a copy of such notice of process to each Designated Equity Holder at an address designated by such Designated Equity Holder;
(ii) engage counsel and such accountants and other advisors for the Designated Equity Holders and incur such other expenses on behalf of the Designated Equity Holders in connection with this Agreement and the transactions contemplated hereby as the Shareholders’ Representative may deem appropriate;
(iii) take such action on behalf of the Designated Equity Holders as the Shareholders’ Representative may deem appropriate in respect of:
(A) any Stockholder claims (including settlement thereof) made by any Parent Indemnitee for indemnification pursuant to Section 10.1;
(B) the rights and obligations of the Shareholders’ Representative pursuant to Section 3.3; and
(C) any calculations or distributions with respect to the Per Share Contingent Consideration;
(iv) take such other action (x) as the Shareholders’ Representative is authorized to take under this Agreement or (y) on written instructions executed by holders of a majority of the outstanding Shares immediately prior to the Effective Time;
(v) receive all documents or certificates or notices and make all determinations on behalf of the Designated Equity Holders required under this Agreement;
(vi) represent each individual Designated Equity Holder or all or certain Designated Equity Holders as a group in all litigation and negotiate or enter into settlements and compromises relating to any disputes arising in connection with this Agreement and the transactions contemplated hereby; and
(vii) take all relevant action in all such other matters as the Shareholders’ Representative may deem necessary or appropriate to consummate this Agreement and the transactions contemplated hereby.
(f) The appointment of the Shareholders’ Representative hereunder is coupled with an interest and irrevocable, and any action taken by the Shareholders’ Representative pursuant to the authority granted in this Section 11.4 shall be effective and binding on each Designated Equity Holder notwithstanding any contrary action of, or omitted direction from, any Designated Equity Holder, except to the extent the Shareholders’ Representative shall have acted maliciously in connection with the performance of its duties hereunder.
(g) By their acceptance of any payments pursuant to Article III of this Agreement, the Equity Holders shall be taken by deemed to have agreed, severally and not jointly (ratably in proportion to such Equity Holder’s Ownership Percentage), to indemnify, defend and hold harmless the Shareholders’ Representative against, from and in respect of any Losses in connection with or resulting from the performance of the Stockholders' Representative acting in his capacity as Stockholders' Representative under its duties hereunder or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on including any costs incurred by the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration Shareholders’ Representative in connection with Article X or Section 3.3, in each case after giving effect to any reductions in the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed aggregate consideration paid to the Disbursement Agent (or an escrow agent affiliated with Designated Equity Holders pursuant to Section 11.4(c) to the Disbursement Agent) may be deposited in a trust account for use by extent the Shareholders' Representative ’ Representative, in its sole discretion, elects to cover fees, costs and expenses as provided in this Section 4.10make any such reduction.
Appears in 1 contract
Sources: Merger Agreement (ACE LTD)
Shareholders’ Representative. (a) At least fifteen days prior Approval of the Merger by the Shareholders shall also constitute the appointment of A▇▇▇▇ ▇▇▇▇▇▇▇ to act as representative of the Effective Time, Shareholders and to act as each of the Company shall appoint a Representative Shareholder’s attorney-in-fact and an alternate Representative representative (the Shareholders “Shareholders’ Representative”). The Shareholders Representative shall, by virtue of the Mergerto do any and all things and to execute any and all documents, be irrevocably appointed Representative of the holders of Converted Shares in such party’s name, place and authorized and empowered to act for and on behalf of stead, in any or all of the holders of Converted Shares way which such party could do if personally present, in connection with this Agreement and the provisions of Sections 1.5(c) Escrow Agreement and 1.5(d) the transactions contemplated hereby or thereby, including without limitation to amend, cancel or extend, or waive, any of the terms of this Agreement (and the above named representativeEscrow Agreement or to receive any notice required hereunder or thereunder. SafeNet, Merger Sub and the Surviving Corporation shall be entitled to rely, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so actingbinding upon such Shareholders, upon any written order, notice, demand, certificate, statement, document or instruction (not only as other paper believed by SafeNet, the Merger Sub or the Surviving Corporation to its due execution be genuine and the validity correct and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered have been signed by the Shareholders' Representative whether delivered in original form’ Representative, by facsimile or otherwise. The Stockholders' Representative and SafeNet, the Merger Sub and the Surviving Corporation shall not be liable to any Stockholder with respect to Shareholder for any action taken or omitted to be taken by SafeNet, the Merger Sub or the Surviving Corporation in such reliance. The Shareholders’ Representative shall have the sole and exclusive right on behalf of any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such Shareholder to take any action or omission results from provide any waiver, or arises out receive any notice, pursuant to Article 8 and Sections 1.6(c), 11.9 and 11.14 of fraud, willful misconduct this Agreement and to settle any claim or criminal action on controversy arising under this Agreement or the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Escrow Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders Shareholders’ Representative may resign at any time by giving written notice of Converted Shares resignation, at least sixty (60) days prior to such resignation, to SafeNet, the Surviving Corporation and the Shareholders, and the Shareholders’ Representative may be removed at any time with or without cause by upon the approval of two-thirds in interest (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the Shareholders at the Closing of the Merger) of the Shareholders (collectively, the “Approving Shareholders”). Upon any such resignation or removal, such Approving Shareholders shall select a successor Shareholders’ Representative. In the case of a resigning Shareholders’ Representative, if no successor Shareholders’ Representative shall have been so appointed by the Approving Shareholders and shall have accepted such appointment (effective upon the date of resignation of the resigning Shareholders’ Representative), within thirty (30) days after the retiring Shareholders’ Representative’s giving of notice of resignation, then the retiring Shareholders’ Representative (or SafeNet if the retiring Shareholders’ Representative does not act) may, on behalf of the Approving Shareholders, appoint a successor Shareholders’ Representative. Upon the acceptance of any appointment as Shareholders’ Representative thereunder by a successor Shareholders’ Representative, such successor Shareholders’ Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Shareholders’ Representative, and the retiring Shareholders’ Representative shall be discharged from its duties and obligations as Shareholders’ Representative under this Agreement and the Escrow Agreement. After any retiring Shareholders’ Representative’s resignation or removal hereunder as Shareholders’ Representative, the provisions of this Section 11.1 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Shareholders’ Representative.
(c) The grant of authority provided for in this Section 11.1: (a) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Shareholder and shall be binding on any successor thereto and (b) shall survive the delivery of an assignment by any Shareholder of the whole or any fraction of its interest in any payment due to it under this Agreement.
(d) The duties and responsibilities of the Shareholders’ Representative hereunder shall be determined solely responsible for all fees, costs and expenses incurred by the Stockholders' express provisions of this Agreement, and no other or further duties or responsibilities shall be implied under this Agreement or any other agreement among the parties hereto, whether or not the Shareholders’ Representative has knowledge thereof. The Shareholders acknowledge that the Shareholders’ Representative is acting solely as a stakeholder at the request of, and for the convenience of, the Shareholders, that the Shareholders’ Representative shall not be deemed to be the agent of the Company or the Shareholders (including his outside advisors) except, in the case of the Shareholders, as contemplated hereunder and under the Escrow Agreement), and that the Shareholders’ Representative shall be released and exculpated of all liability whatsoever arising from, related to, in connection with serving or resulting from its activities as a representative Shareholders’ Representative and shall not be liable to the Company or the Shareholders for any act or omission on its part, unless taken, not taken or suffered in bad faith or in willful disregard of this Agreement or involving gross negligence or willful misconduct on the part of the holders of Converted Shares Shareholders’ Representative.
(e) Except as otherwise contemplated hereunder and such feesor under the Escrow Agreement, costs and expenses may the Shareholders’ Representative shall be deducted from amounts otherwise distributed entitled to holders of Converted Shares. At the Effective Timerely, at the election of the Companyas being binding upon each Shareholder, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (upon any document or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use other paper believed by the Shareholders' ’ Representative to cover be genuine and correct and to have been signed by such Shareholder, and the Shareholders’ Representative shall not be liable to any Shareholder for any action taken or omitted to be taken by the Shareholders’ Representative in such reliance.
(f) The Shareholders agree that they shall indemnify the Shareholders’ Representative in an amount and of such character as the Shareholders’ Representative shall reasonably require to institute or defend any action or legal proceeding involving any matter referred to in this Agreement, including any and all claims, losses, liabilities, costs, judgments, attorneys’ fees and other expenses of every kind and nature whatsoever in relation thereto.
(g) Except as otherwise contemplated hereunder, the Shareholders’ Representative shall not be liable to the Shareholders for any action taken or not taken by it in good faith and believed by it to be authorized by, or within the rights or powers conferred upon it by, this Agreement and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken, not taken or suffered by it hereunder in good faith and in accordance with, or in reliance upon, the opinion or advice of such counsel.
(h) The Shareholders hereby agree to pay or reimburse the Shareholders’ Representative upon request for all expenses, disbursements and advances, including reasonable attorney’s fees, costs incurred or made by the Shareholders’ Representative in connection with the carrying out of its duties hereunder, which payment or reimbursement shall not exceed each such Shareholder’s pro rata portion (based on the number of shares of SafeNet Common Stock constituting the Aggregate Stock Consideration held by the Shareholders at the Closing of the Merger), unless such Shareholder has committed fraud and such fraud has given rise to such expenses as provided in this Section 4.10or amounts.
(i) The parties hereto agree that neither SafeNet, the Surviving Corporation nor the Merger Sub shall be liable for any action taken or not taken by the Shareholders’ Representative hereunder. Each of the Shareholders and the Shareholders’ Representative agree that all disputes, controversies or other matters arising between or among the Shareholders and the Shareholders’ Representative, and any and all liabilities with respect to such disputes, controversies or other matters, shall be limited to such parties solely, and that neither SafeNet nor any other party shall have any responsibility or liability whatsoever with respect to such disputes, controversies or other matters.
Appears in 1 contract
Shareholders’ Representative. The Shareholders' Representative shall be solely responsible for distributing to each holder of shares of Common Stock, Cumulative Preferred Stock and Series A Preferred Stock such holder's pro rata share of Common Consideration, Cumulative Consideration and Series A Consideration (a) At least fifteen days collectively, the "Merger Consideration"), respectively, in accordance with the number of shares of Common Stock, Cumulative Preferred Stock and Series A Preferred Stock owned by such holder immediately prior the Effective Time as set forth on Schedule 3.2. Shareholders' Representative shall distribute Merger Consideration to stockholders only upon receipt by Shareholders' Representative of such holder's stock certificate evidencing Series A Preferred Stock, Cumulative Preferred Stock or Common Stock, respectively. Shareholders' Representative shall forward all such certificates to the Effective Time, Company upon receipt. If the Company shall appoint a Shareholders' Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue of the Merger, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered fails or is unable to act for and on behalf of any or distribute all of the holders Merger Consideration received by it within 120 days of Converted Shares in connection with such receipt, it shall promptly return any remaining Merger Consideration to the provisions of Sections 1.5(c) Buyer Group. Buyer Group shall indemnify the Shareholders' Representative and 1.5(d) the Shareholders against any legitimate claim by any person who held capital stock of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding Company immediately prior to the Effective Time being referred to herein for payment of such returned Merger Consideration; provided, however, that Buyer Group's indemnification obligation under this Section shall not exceed in the aggregate the amount of such returned Merger Consideration. No interest shall accrue or be payable on any Merger Consideration except as provided in the "Stockholders' Representative")Note or under Delaware law. Notwithstanding any statement contained in this Agreement to Neither the contraryBuyer Group, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by Surviving Corporation nor the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder holder of shares of Common Stock, Cumulative Preferred Stock or Series A Preferred Stock for any Merger Consideration (or dividends or distributions with respect thereto) delivered to any action taken or omitted to be taken a public official as required by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under applicable abandoned property, escheat or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interestsimilar law.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10.
Appears in 1 contract
Sources: Merger Agreement (Playcore Inc)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shallhereby irrevocably appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by virtue ▇▇., a Shareholder, to serve as representative of the Merger, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders Shareholders from and after the date of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the this Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "StockholdersShareholders' Representative"). Notwithstanding any statement contained in this Agreement EACH SHAREHOLDER HEREBY AUTHORIZES THE SHAREHOLDERS' REPRESENTATIVE TO ACT AS ATTORNEY-IN-FACT ON BEHALF OF SUCH SHAREHOLDER WITH RESPECT TO ANY ACT REQUIRED OR PERMITTED TO BE TAKEN BY SUCH SHAREHOLDER HEREUNDER (INCLUDING, WITHOUT LIMITATION, TO SPECIFY THE MANNER OF MAKING PAYMENT TO SUCH SHAREHOLDER HEREUNDER OR TO RECEIVE ANY FUNDS TO BE PAID BY OR ON BEHALF OF BUYER TO SUCH SHAREHOLDERS HEREUNDER). WITH RESPECT TO ANY DISPUTE THAT MAY ARISE HEREUNDER OR UNDER ANY RELATED AGREEMENT, EACH SHAREHOLDER AGREES THAT HE OR SHE MAY ACT ONLY THROUGH THE SHAREHOLDERS' REPRESENTATIVE. Any Party hereto shall be entitled to the contrary, Parent may rely conclusivelyrely, and shall be fully protected in so actingrelying, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered all actions taken by the Shareholders' Representative whether delivered in original form, by facsimile or otherwiseRepresentative. The StockholdersShareholders' Representative shall may not be liable to any Stockholder with respect to any action taken or omitted to be taken by any changed without the consent of Purchaser, except as provided in the next sentence. In the event of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part death of the StockholdersShareholder' Representative. Parent and Merger Sub , the Shareholders shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor promptly irrevocably appoint by a majority vote of the Merger and Shareholders (based on stock ownership immediately prior to the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority Closing) one of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent remaining Shareholders (or an escrow agent affiliated with the Disbursement Agentbeneficial owners of Shareholders that are entities) may be deposited in who is a trust account for use by natural person to act as the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gulf Island Fabrication Inc)
Shareholders’ Representative. 7.4.1 Effective only upon the Effective Time, Shareholder Representative Services, LLC (asuch entity or person and any successor or successors being the “Shareholders’ Representative”) At least fifteen days shall act as the representative of the Company Shareholders, and shall be authorized to act on behalf of the Company Shareholders and to take any and all actions required or permitted to be taken by the Shareholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Trintech Party for indemnification pursuant to this Article VII and with respect to any actions to be taken by the Shareholders’ Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the AGREEMENT AND PLAN OF MERGER PAGE 41 exercise of the power to (i) authorize the delivery of cash from the Escrow Account to a Trintech Party in satisfaction of claims by a Trintech Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification and (iii) take all actions necessary in the judgment of the Shareholders’ Representative for the accomplishment of the foregoing). In all matters relating to this Article VII, the Shareholders’ Representative shall be the only party entitled to assert the rights of the Company Shareholders, and the Shareholders’ Representative shall perform all of the obligations of the Company Shareholders hereunder. The Trintech Parties shall be entitled to rely on all statements, representations and decisions of the Shareholders’ Representative. The Shareholders’ Representative is not entitled to amend this Agreement or take any actions relating to this Agreement prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Shareholders’ Representative shallmay resign upon not less than 20 days’ prior written notice to Trintech, Inc. and the Senior Preferred Holders. The Senior Preferred Holders by virtue the vote of a majority-in-interest of the MergerBase Escrow Amount included in the Escrow Fund may remove the Shareholders’ Representative from time to time upon not less than 20 days’ prior written notice to Trintech, Inc. Any vacancy in the position of the Shareholders’ Representative may be irrevocably appointed Representative filled by the approval of the holders of Converted Shares and authorized and empowered a majority-in-interest in the Escrow Fund. Any successor Shareholders’ Representative shall acknowledge in writing to act for and on behalf Trintech, Inc. his acceptance of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, his appointment as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Shareholders’ Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and .
7.4.2 The Company Shareholders shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered bound by all actions taken by the Shareholders' ’ Representative whether delivered in original formits capacity thereof, by facsimile or otherwiseexcept for any action that conflicts with the limitations set forth in Section 7.4.4 below. The Stockholders' Shareholders’ Representative shall at all times act in its capacity as Shareholders’ Representative in a manner that the Shareholders’ Representative believes to be in the best interest of the Senior Preferred Shareholders. Neither the Shareholders’ Representative nor any of its agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence or bad faith. The Shareholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by him, her or it, as the case may be and shall not be liable for any action taken or omitted to be taken based on any Stockholder with respect such consultation, advice or guidance. The Shareholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement.
7.4.3 Each Company Shareholder on whose behalf cash was contributed to the Escrow Account shall, severally and not jointly, hold harmless and reimburse the Shareholders’ Representative from and against such Company Shareholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative) suffered or incurred by the Shareholders’ Representative (collectively, the “Reimbursable Expenses”) arising out of or resulting from any action taken or omitted to be taken by any the Shareholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Shareholders’ Representative’s gross negligence or bad faith; provided, however, that no such Company Shareholder shall be liable in excess of such Company Shareholder’s pro rata portion of the Stockholders' Aggregate Merger Consideration. The Shareholders’ Representative acting may withdraw funds from the Shareholders’ Representative AGREEMENT AND PLAN OF MERGER PAGE 42 Escrow Account to pay Reimbursable Expenses. In addition, if the Shareholders’ Representative Escrow Amount has been fully depleted, in his capacity as Stockholders' Representative under or the event there are any remaining funds in connection with this the Escrow Account to be distributed to shareholders of Company immediately prior to the final distribution from the Escrow Account pursuant to the Escrow Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub Shareholders’ Representative shall be entitled to rely recover any such expenses from the Escrow Account prior to the distribution of funds to the Company Shareholders. The Shareholders’ Representative shall not be entitled to any compensation for his, her or its services in such capacity other than the amount to be paid to Shareholders’ Representative by the Company at Closing in accordance with the terms of a Shareholder Representative Agreement executed on or about the date hereof or the Closing Date.
7.4.4 Notwithstanding anything to the contrary herein or in the Escrow Agreement, the Shareholders’ Representative is not authorized to, and shall not, accept on behalf of any Company Shareholder any merger consideration to which such appointments Company Shareholder is entitled under this Agreement and treat the Stockholders' Representatives as the duly appointed representatives Shareholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of each holder of Converted Shares. Each Stockholder who votes in favor capital stock of the Merger and Company or Trintech, Inc. now or hereafter owned of record or beneficially by any Company Shareholder unless the transactions contemplated by this Agreement, Shareholders’ Representative is expressly authorized to do so in a writing signed by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interestCompany Shareholder.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10.
Appears in 1 contract
Shareholders’ Representative. (a) At least fifteen days prior In the event that the Merger is approved, effective upon such vote, and without further act of any stockholder of the Company, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ (hereinafter collectively referred to as the Effective Time, “Stockholders Representative”) shall be appointed as agent and attorney-in-fact by and for each person or entity (other than holders of Dissenting Shares) which owned beneficially or of record any shares of the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue of the Merger, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding Stock immediately prior to the Effective Time being (hereinafter referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained “Holdback Beneficiaries”) to give and receive notices and communications, to authorize payments from the Holdback Shares in this Agreement satisfaction of claims by the Indemnified Party, to the contraryobject to such payments, Parent may rely conclusivelyto agree to, negotiate, enter into settlements and compromises of, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution demand arbitration and the validity comply with orders of courts and effectiveness awards of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder arbitrators with respect to any action taken such claims, and to take all actions necessary or omitted to be taken by any appropriate in the judgment of the Stockholders' Stockholders Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on for the part accomplishment of the Stockholders' foregoing. Such agency may be changed by the Holdback Beneficiaries from time to time upon not less than thirty (30) days’ prior written notice to Purchaser; provided that the Stockholders Representative may not be removed unless Holdback Beneficiaries representing at least a two-thirds interest in the Holdback agree in writing to such removal and to the identity of the substituted Stockholders Representative. Parent and Merger Sub Any vacancy in the position of Stockholders Representative may be filled by approval in writing of the Holdback Beneficiaries representing at least a majority in interest of the Holdback Shares. No bond shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor required of the Merger and Stockholders Representative. Notices or communications to or from the transactions contemplated by this Agreement, by such vote, without any further action, and Stockholders Representative shall constitute notice to or from each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interestHoldback Beneficiaries.
(b) The holders Stockholders Representative shall not be liable for any act done or omitted under this Agreement as Stockholders Representative while acting in good faith and in the exercise of Converted Shares reasonable judgment. The Holdback Beneficiaries shall be solely responsible for all feesjointly and severally indemnify the Stockholders Representative and hold the Stockholders Representative harmless against any loss, costs liability or expense incurred without gross negligence or bad faith on the part of the Stockholders Representative and expenses incurred by the Stockholders' Representative (including his outside advisors) arising out of or in connection with serving as a representative the acceptance or administration of the holders of Converted Shares hereunder and such feesStockholders Representative’s duties under this Agreement, costs including the reasonable fees and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At any legal counsel retained by the Effective TimeStockholders Representative.
(c) A decision, at the election act, consent or instruction of the CompanyStockholders Representative shall constitute a decision of all the Holdback Beneficiaries and shall be final, an amount not to exceed $100,000 which would otherwise be distributed to binding and conclusive upon each of the Disbursement Agent Holdback Beneficiaries, and the Purchaser and the Surviving Corporation (or an escrow agent affiliated with including the Disbursement AgentSubsidiary) may be deposited rely upon any such written decision, consent or instruction of the Stockholders Representative as being the decision, consent or instruction of each of the Holdback Beneficiaries. The Purchaser and the Surviving Corporation (including the Subsidiary) are hereby relieved from any liability to any person or entity for any acts done by them in a trust account for use by accordance with such decision, consent or instruction of the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10Stockholders Representative.
Appears in 1 contract
Sources: Merger Agreement (iVOW, Inc.)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative ▇▇▇▇ ▇▇ is hereby appointed as agent and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by virtue attorney-in-fact for each of the MergerShareholders, be irrevocably appointed Representative of (i) to enter into and deliver the holders of Converted Shares and authorized and empowered to act for and Escrow Agreement on behalf of any or all each of the holders Shareholders, (ii) to authorize or object to delivery to the Purchaser of Converted Shares the Escrow Fund, or any portion thereof, in connection satisfaction of indemnification claims by the Purchaser in accordance with the provisions of Sections 1.5(cthe Escrow Agreement, and (iii) and 1.5(d) to take all actions necessary or appropriate in the judgment of the Agreement (Shareholders’ Representative for the above named representative, as well as any subsequent representatives accomplishment of the Stockholders elected foregoing. Such agency may be changed by vote of holders owning a majority the each of the Converted Shareholders from time to time upon no less than twenty (20) days prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of at least 51% of all of the Company Shares on an as-if converted basis outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Shares on an as-if converted basis outstanding immediately prior to the contrarytransaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, Parent may rely conclusivelyas applicable. No bond shall be required of the Shareholders’ Representative, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' ’ Representative whether delivered in original form, by facsimile shall not receive any compensation for his services. Notices or otherwisecommunications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders. The Stockholders' Shareholders’ Representative shall not be liable to for any Stockholder with respect to any action taken act done or omitted to be taken by any hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders' Shareholders’ Representative acting in his capacity as Stockholders' Representative under shall, for all purposes hereunder, constitute a decision, act, consent or in connection with this Agreement, unless such action or omission results from or arises out instruction of fraud, willful misconduct or criminal action on the part all of the Stockholders' Representative. Parent stockholders of the Company Group and Merger Sub shall be entitled to rely on such appointments final, binding and treat the Stockholders' Representatives as the duly appointed representatives of conclusive upon each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interestShareholders.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10.
Appears in 1 contract
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by By virtue of the Merger, be irrevocably appointed Representative approval of this Agreement and the transactions contemplated hereunder by the Shareholders and without any further action of any of the holders Shareholders or the Company, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ is hereby appointed as the “Shareholders’ Representative”, the exclusive agent and attorney-in-fact for each Shareholder, (i) to give and receive notices and communications to Purchaser for any purpose under this Agreement and the Additional Agreements, (ii) to agree to, negotiate, enter into settlements and compromises of Converted Shares and authorized demand arbitration and empowered comply with orders of courts and awards of arbitrators with respect to act for any indemnification claims (including Third-Party Claims) under Section 10.1 or other disputes arising under or related to this Agreement, (iii) to enter into and deliver the Escrow Agreement on behalf of any or all each of the holders Shareholders, (iv) to authorize or object to delivery to the Purchaser of Converted Shares the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Shareholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the provisions of Sections 1.5(cAgreement and (vi) and 1.5(d) to take all actions necessary or appropriate in the judgment of the Agreement (Shareholders’ Representative for the above named representative, as well as any subsequent representatives accomplishment of the Stockholders elected foregoing. Such agency may be changed by vote the Shareholders from time to time upon no less than twenty (20) days’ prior written notice to the Purchaser, provided, however, that the Shareholders’ Representative may not be removed unless holders of holders owning a majority at least 51% of all of the Converted Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Shareholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Ordinary Shares on an as-if converted basis outstanding immediately prior to the contrary, Parent may rely conclusivelytransaction contemplated by this Agreement. Any removal or change of the Shareholders’ Representative shall not be effective until written notice is delivered to Purchaser. No bond shall be required of the Shareholders’ Representative, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' ’ Representative whether delivered in original form, by facsimile shall not receive any compensation for his services. Notices or otherwisecommunications to or from the Shareholders’ Representative shall constitute notice to or from the Shareholders. The Stockholders' Shareholders’ Representative shall not be liable to for any Stockholder with respect to any action taken act done or omitted to be taken by any hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders' Shareholders’ Representative acting in his capacity as Stockholders' shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Shareholders of the Company and shall be final, binding and conclusive upon each of the Shareholders. The Shareholders shall severally indemnify the Shareholders’ Representative under and hold him harmless against any loss, liability, or in connection with this Agreement, unless such action expense incurred without gross negligence or omission results from or arises out of fraud, willful misconduct or criminal action bad faith on the part of the Stockholders' Representative. Parent Shareholders’ Representative and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives arising out of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration or in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority or administration of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Sharesduties hereunder. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided Notwithstanding anything in this Section 4.1013.15 to the contrary, the Shareholders’ Representative, in the capacity as such, shall have no obligation or authority with respect to any indemnification claims against a Shareholder made by a Purchaser Indemnitee under Section 10.2.
Appears in 1 contract
Sources: Share Exchange Agreement (Ace Global Business Acquisition LTD)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shallEach Shareholder, by virtue of the Merger, be irrevocably appointed Representative adoption of this Agreement and approval of the Merger by the holders of Converted Shares Company Stock (regardless of whether or not all Shareholders vote in favor of or consent to the adoption of this Agreement and authorized the approval of the Merger and empowered the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates M▇▇▇ ▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) as his, her or its representative for purposes of this Agreement. The holders of Company Stock and their respective successors shall be bound by any and all actions taken by the Shareholders’ Representative on their behalf under or otherwise relating to act for this Agreement and on behalf the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Shareholders’ Representative is unable or all of unwilling to serve or shall resign, a successor Shareholders’ Representative shall be selected by the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares shares of Common Stock and Preferred Stock outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"Closing (taken together on an as-converted basis). Notwithstanding A Shareholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any statement contained in this Agreement to the contrarydeath, Parent may rely conclusivelydisability or other replacement of a Shareholders’ Representative, and a successor shall be protected in so actingappointed effective immediately thereafter and Parent and Merger Sub shall be notified promptly of such appointment by the successor Shareholders’ Representative. No resignation, upon nor any written orderother replacement, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed Shareholders’ Representative is effective against Parent or Merger Sub until selection of a successor and delivered by prior written notice to Parent and Merger Sub of such selection has been provided and consent of Parent has been obtained (such consent not to be unreasonably withheld or delayed). Such consent shall be deemed to have been given if the proposed successor is any of G. Venkatesh, J▇▇▇▇▇ ▇▇▇▇▇, S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ or I▇▇ ▇▇▇▇▇. Each successor Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' ’ Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of have all the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreementpower, unless such action or omission results from or arises out of fraudrights, willful misconduct or criminal action on authority and privileges hereby conferred upon the part of the Stockholders' original Shareholders’ Representative. .
(b) Parent and Merger Sub shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Shareholders’ Representative on such appointments behalf of the holders of Company Stock. All communications or writings to be sent to the holders of Company Stock pursuant to this Agreement may be addressed to the Shareholders’ Representative and treat any communication or writing so sent shall be deemed notice to all of the Stockholders' Representatives as holders of Company Stock hereunder. The adoption and approval of this Agreement by the duly appointed representatives holders of the Company Stock shall constitute the consent and agreement of each of the holders of Company Stock that the Shareholders’ Representative is authorized to accept deliveries, including any notice, on behalf of each holder of Converted Shares. Each Stockholder who votes in favor Company Stock pursuant hereto.
(c) The Shareholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration Company Stock, with full power of substitution in such holder’s name and on such holder’s behalf to act according to the terms of this Agreement and the other documents contemplated hereby in the absolute discretion of the Shareholders’ Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable in connection with this Agreement and the Mergerother documents contemplated hereby, including without limitation Article IX hereof. This power of attorney and all authority hereby conferred is granted subject to the interest of the other holders of Company Stock hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Key Shareholder, by acceptance thereof and without operation of law, whether by such holder’s death or disability or by any further action, confirms such appointment and authority of the Stockholders' other event.
(d) The Shareholders’ Representative and hereby acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be solely responsible for all fees, costs and expenses incurred by to serve as the Stockholders' Shareholders’ Representative (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such fees, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated accordance with the Disbursement Agent) may applicable terms hereof and to be deposited in a trust account for use bound by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.10such terms.
Appears in 1 contract
Sources: Merger Agreement (Webmethods Inc)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shallEach Shareholder, by virtue of the Mergeradoption of this Agreement and approval of the Merger by the Shareholders (regardless of whether or not all Shareholders vote in favor of or consent to the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the “Shareholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Shareholders and their respective successors shall be irrevocably appointed deemed to have approved, and shall be bound by, any and all actions taken by the Shareholders’ Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Shareholders’ Representative is unable or unwilling to serve or shall resign, a successor Shareholders’ Representative shall be selected by the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares shares of Company Common Stock outstanding immediately prior to the Effective Time being referred Closing. A Shareholders’ Representative may not resign, except upon thirty (30) days prior written notice to herein as Parent and Merger Sub. In the "Stockholders' event of a notice of proposed resignation, or any death, disability or other replacement of a Shareholders’ Representative", a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Shareholders’ Representative, the successor shall be deemed to be the executor or other representative of such Shareholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Shareholders’ Representative. No resignation, nor any other replacement, of any Shareholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Shareholders’ Representative assumes in writing all obligations of the original Shareholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Shareholders’ Representative (such consent not to be unreasonably withheld or delayed). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Each successor Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' ’ Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of have all the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreementpower, unless such action or omission results from or arises out of fraudrights, willful misconduct or criminal action on authority and privileges hereby conferred upon the part of the Stockholders' original Shareholders’ Representative. .
(b) Parent and Merger Sub shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Shareholders’ Representative on such appointments behalf of the Shareholders. All communications or writings to be sent to the Shareholders pursuant to this Agreement may be addressed to the Shareholders’ Representative and treat any communication or writing so sent shall be deemed notice to all of the Stockholders' Representatives as Shareholders hereunder. The adoption and approval of this Agreement by the duly appointed representatives holders of the Company Stock shall constitute the consent and agreement of each of the Shareholders that the Shareholders’ Representative is authorized to accept deliveries, including any notice, on behalf of each holder of Converted Shares. Each Stockholder who votes in favor Company Stock pursuant hereto.
(c) The Shareholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration Company Stock, with full power of substitution in such holder’s name and on such holder’s behalf to act according to the terms of this Agreement and the other documents contemplated hereby in the absolute discretion of the Shareholders’ Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable in connection with this Agreement and the Mergerother documents contemplated hereby, by acceptance thereof including without limitation Article IX hereof. This power of attorney and without any further action, confirms such appointment and all authority hereby conferred is granted subject to the interest of the Stockholders' other holders of Company Stock hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Shareholder or operation of law, whether by such holder’s death or disability or by any other event.
(d) The Shareholders’ Representative and hereby acknowledges and agrees that to serve as the Shareholders’ Representative in accordance with the applicable terms hereof and to be bound by such appointment is irrevocable terms. At Parent’s request, the Shareholders’ Representative shall enter into an agreement in form and coupled with an interest.
(b) The holders of Converted Shares shall substance reasonably satisfactory to Parent and the Shareholders’ Representative in which the Shareholders’ Representative acknowledges and agrees to serve as a Shareholders’ Representative and to be solely responsible for all fees, costs and expenses incurred bound by the Stockholders' Representative applicable terms of this Agreement (including his outside advisors) in connection with serving as a representative of the holders of Converted Shares hereunder and such feesincluding, costs and expenses may be deducted from amounts otherwise distributed to holders of Converted Shares. At the Effective Timewithout limitation, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by the Shareholders' Representative to cover fees, costs and expenses as provided in this Section 4.106.3).
Appears in 1 contract
Sources: Merger Agreement (Sourcefire Inc)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by By virtue of the MergerCompany Shareholder Approval, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further actionact of any holder of Company Shares, confirms the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such appointment shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and authority receive notices and communications; to bind the holders of Company Shares to the terms of the Stockholders' Escrow Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; 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 and acknowledges and agrees that such appointment is irrevocable and coupled with an interestfor the accomplishment of the foregoing.
(b) The Shareholders’ Representative may be changed by the holders of Converted Company Shares shall from time to time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any successors thereto and to the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to the holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be solely responsible vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each of the holders of interest of the Escrow Amounts for all feesmatters relating to this Agreement.
(c) The Shareholders’ Representative will not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. The Shareholders’ Representative will be entitled to the advance and reimbursement of costs and expenses incurred by or on behalf of the Stockholders' Shareholders’ Representative in the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(including his outside advisorsd) in connection with serving as A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a representative decision of the holders of Converted Company Shares hereunder and will be final, binding, and conclusive upon each such feesholder. Parent, costs and expenses all other persons entitled to indemnification under the Escrow Agreements or any other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may be deducted from amounts otherwise distributed to rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of the holders of Converted Company Shares. At the Effective TimeParent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, at the election act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by Major Shareholders, and the Shareholders' ’ Representative have signed or caused their respective duly authorized officers to cover feessign this Agreement, costs and expenses all as provided in this Section 4.10.of the date first written above. FLOW INTERNATIONAL CORPORATION By Its ORANGE ACQUISITION CORPORATION By Its OMAX CORPORATION By Its SHAREHOLDERS’ REPRESENTATIVE (signature page continues) Major Shareholder [•]
ARTICLE I THE MERGER
1.1 Effective Time of the Merger 1 1.2 Closing 1 1.3 Effects of the Merger 1
Appears in 1 contract
Shareholders’ Representative. (a) At least fifteen days The parties have agreed that it is desirable to designate a representative to act on behalf of the shareholders of the Company immediately prior to the Second Effective Time, the Company shall appoint a Representative and an alternate Representative Time (the Shareholders “Shareholders”) for certain limited purposes, as specified herein (the “Shareholders’ Representative”). The Shareholders hereby designate Shareholder Representative shallServices LLC as the initial Shareholders’ Representative. The Shareholders’ Representative may resign at any time, and the Shareholders’ Representative may be removed by virtue the vote of Persons which collectively owned more than fifty percent (50%) of the MergerCompany Shares outstanding as of immediately prior to the Second Effective Time, voting together as a single class on an as converted basis to Company Ordinary Shares (the “Majority Holders”). In the event that a Shareholders’ Representative has resigned or been removed, a new Shareholders’ Representative shall be irrevocably appointed Representative by a vote of the holders of Converted Shares Majority Holders, such appointment to become effective upon the written acceptance thereof by the new Shareholders’ Representative. The Shareholders’ Representative shall have such powers and authorized and empowered authority as are necessary to carry out the functions assigned to it under this Agreement; provided, however, that the Shareholders’ Representative shall have no obligation to act on behalf of the Shareholders except as expressly provided herein. Without limiting the generality of the foregoing, the Shareholders’ Representative shall have full power, authority and discretion to, after the Second Effective Time (i) negotiate and enter into amendments to this Agreement for and on behalf of any or all the Shareholders, (ii) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby on behalf of the holders Shareholders, (iii) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of Converted Shares or related to this Agreement and the transactions contemplated hereby, including any disputes related to the Earnout Payments, in connection with the provisions of Sections 1.5(c) and 1.5(d) each case on behalf of the Agreement Shareholders and (iv) take all actions necessary or appropriate in the above named representative, as well as any subsequent representatives judgment of the Stockholders elected by vote of holders owning a majority Shareholders’ Representative for the accomplishment of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwiseforegoing. The Stockholders' Shareholders’ Representative shall not be liable have no liability to TRTL, TRTL Parent, the Company or any Stockholder Shareholder with respect to any action actions taken or omitted to be taken by any taken, except to the extent arising out of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of Shareholders’ Representative’s fraud, bad faith, gross negligence or willful misconduct or criminal action on the part of the Stockholders' Representativemisconduct. Parent and Merger Sub The Shareholders’ Representative shall be entitled to rely on engage such appointments counsel, experts and treat the Stockholders' Representatives other agents and consultants as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration it shall deem necessary in connection with the Merger, by acceptance thereof exercising its powers and without any further action, confirms such appointment performing its function hereunder and authority of the Stockholders' Representative and acknowledges and agrees that such appointment is irrevocable and coupled with an interest.
(b) The holders of Converted Shares shall be entitled to conclusively rely on the opinions and advice of such Persons. The Shareholders’ Representative shall be entitled to reimbursement solely responsible from the Shareholders for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Shareholders’ Representative. The Shareholders will indemnify, defend and hold harmless the Shareholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses incurred by the Stockholders' Representative (including his outside advisorsthe fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with serving the Shareholders’ Representative’s execution and performance of this Agreement, in each case as a representative such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the holders Shareholders’ Representative, the Shareholders’ Representative will reimburse the Shareholders the amount of Converted Shares hereunder and such feesindemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Shareholders’ Representative by the Shareholders, costs and expenses any such Representative Losses may be deducted recovered by the Shareholders’ Representative from (i) the funds in the Expense Fund, and (ii) from any Earnout Amount at such time as any such amounts otherwise distributed to holders of Converted Shares. At the Effective Time, at the election of the Company, an amount not to exceed $100,000 which would otherwise be distributed distributable to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by Shareholders; provided, that while this section allows the Shareholders' ’ Representative to cover feesbe paid from the Expense Fund and the Earnout Amount, costs this does not relieve the Shareholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Shareholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Shareholders’ Representative be required to advance its own funds on behalf of the Shareholders or otherwise. The Shareholders acknowledge and expenses as provided in agree that the foregoing indemnities will survive the resignation or removal of the Shareholders’ Representative or the termination of this Section 4.10Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Terrapin 3 Acquisition Corp)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by By virtue of the MergerCompany Shareholder Approval, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further actionact of any holder of Company Shares, confirms the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such appointment shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and authority receive notices and communications; to bind the holders of Company Shares to the terms of the Stockholders' Escrow Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; 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 and acknowledges and agrees that such appointment is irrevocable and coupled with an interestfor the accomplishment of the foregoing.
(b) The Shareholders’ Representative may be changed by the holders of Converted Company Shares shall from time to time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any successors thereto and to the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to the holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be solely responsible vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each of the holders of interest of the Escrow Amounts for all feesmatters relating to this Agreement.
(c) The Shareholders’ Representative will not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. The Shareholders’ Representative will be entitled to the advance and reimbursement of costs and expenses incurred by or on behalf of the Stockholders' Shareholders’ Representative in the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(including his outside advisorsd) in connection with serving as A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a representative decision of the holders of Converted Company Shares hereunder and will be final, binding, and conclusive upon each such feesholder. Parent, costs and expenses all other persons entitled to indemnification under the Escrow Agreements or any other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may be deducted from amounts otherwise distributed to rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of the holders of Converted Company Shares. At the Effective TimeParent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, at the election act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by Major Shareholders, and the Shareholders' ’ Representative have signed or caused their respective duly authorized officers to cover feessign this Agreement, costs all as of the date first written above. FLOW INTERNATIONAL CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President ORANGE ACQUISITION CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its President OMAX CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its SHAREHOLDERS’ REPRESENTATIVE ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature page continues) PUGET PARTNERS, L.P. Major Shareholder By: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Inc. Its General Partner By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its President /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Major Shareholder /s/ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ Major Shareholder /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Major Shareholder Dated as of September 9, 2008 Amended November 10, 2008 Amended and expenses as provided in this Section 4.10.Restated [•], 2009 ARTICLE I THE MERGER
1.1 Effective Time of the Merger 11 1.2 Closing 11 1.3 Effects of the Merger 11
Appears in 1 contract
Sources: Agreement and Plan of Merger (Flow International Corp)
Shareholders’ Representative. (a) At least fifteen days prior to the Effective Time, the Company shall appoint a Representative and an alternate Representative (the Shareholders Representative). The Shareholders Representative shall, by By virtue of the MergerCompany Shareholder Approval, be irrevocably appointed Representative of the holders of Converted Shares and authorized and empowered to act for and on behalf of any or all of the holders of Converted Shares in connection with the provisions of Sections 1.5(c) and 1.5(d) of the Agreement (the above named representative, as well as any subsequent representatives of the Stockholders elected by vote of holders owning a majority of the Converted Shares outstanding immediately prior to the Effective Time being referred to herein as the "Stockholders' Representative"). Notwithstanding any statement contained in this Agreement to the contrary, Parent may rely conclusively, and shall be protected in so acting, upon any written order, notice, demand, certificate, statement, document or instruction (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) executed and delivered by the Shareholders' Representative whether delivered in original form, by facsimile or otherwise. The Stockholders' Representative shall not be liable to any Stockholder with respect to any action taken or omitted to be taken by any of the Stockholders' Representative acting in his capacity as Stockholders' Representative under or in connection with this Agreement, unless such action or omission results from or arises out of fraud, willful misconduct or criminal action on the part of the Stockholders' Representative. Parent and Merger Sub shall be entitled to rely on such appointments and treat the Stockholders' Representatives as the duly appointed representatives of each holder of Converted Shares. Each Stockholder who votes in favor of the Merger and the transactions contemplated by this Agreement, by such vote, without any further action, and each holder of Converted Shares who receives Merger Consideration in connection with the Merger, by acceptance thereof and without any further actionact of any holder of Company Shares, confirms the holders of Company Shares will be deemed to have appointed ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. (previously defined as the Shareholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such appointment shareholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and authority receive notices and communications; to bind the holders of Company Shares to the terms of the Stockholders' Escrow Agreements; to authorize delivery of cash and the exercise of the Escrow Note from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; 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 and acknowledges and agrees that such appointment is irrevocable and coupled with an interestfor the accomplishment of the foregoing.
(b) The Shareholders’ Representative may be changed by the holders of Converted Company Shares shall from time to time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Escrow Amount agree to such removal of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc. and any successors thereto and to the identity of the substituted agent. A Shareholders’ Representative may resign at any time upon giving at least 30 days’ written notice to the holders of interest in the Escrow Account, except that no such resignation will become effective until the appointment of a successor Shareholders’ Representative. Upon resignation of a Shareholders’ Representative or a successor Shareholders’ Representative thereto, the holders of a majority interest of the Escrow Amount will agree on a successor Shareholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Shareholders’ Representative within such time, the resigning Shareholders’ Representative will have the right to appoint a successor Shareholders’ Representative, or if a Shareholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Shareholders’ Representative. Any successor Shareholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be solely responsible vested with all the rights, powers, and duties of the predecessor Shareholders’ Representative as if originally named as Shareholders’ Representative and thereafter the resigning Shareholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Shareholders’ Representative, and no Shareholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Shareholders’ Representative will constitute notice to or from each of the holders of interest of the Escrow Amounts for all feesmatters relating to this Agreement.
(c) The Shareholders’ Representative will not be liable for any act done or omitted hereunder as the Shareholders’ Representative while acting in good faith. Holders of Company Shares on whose behalf the Escrow Amounts are contributed will severally indemnify the Shareholders’ Representative and hold the Shareholders’ Representative harmless against all loss, liability, or expense incurred without bad faith or willful misconduct on the part of such Shareholders’ Representative and arising out of or in connection with the acceptance or administration of such Shareholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative. The Shareholders’ Representative will be entitled to the advance and reimbursement of costs and expenses incurred by or on behalf of the Stockholders' Shareholders’ Representative in the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders’ Representative, in accordance with the terms of the Escrow Agreements.
(including his outside advisorsd) in connection with serving as A decision, act, consent, or instruction of the Shareholders’ Representative relating to this Agreement will constitute a representative decision of the holders of Converted Company Shares hereunder and will be final, binding, and conclusive upon each such feesholder. Parent, costs and expenses all other persons entitled to indemnification under the Escrow Agreements or any other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may be deducted from amounts otherwise distributed to rely upon any such decision, act, consent, or instruction of the Shareholders’ Representative as being the decision, act, consent, or instruction of the holders of Converted Company Shares. At the Effective TimeParent and all other Indemnified Persons are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, at the election act, consent, or instruction of the Shareholders’ Representative. IN WITNESS WHEREOF, Parent, Sub, Company, an amount not to exceed $100,000 which would otherwise be distributed to the Disbursement Agent (or an escrow agent affiliated with the Disbursement Agent) may be deposited in a trust account for use by Major Shareholders, and the Shareholders' ’ Representative have signed or caused their respective duly authorized officers to cover feessign this Agreement, costs all as of the date first written above. FLOW INTERNATIONAL CORPORATION By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President and expenses as provided in this Section 4.10.CEO ORANGE ACQUISITION CORPORATION By /s/ ▇▇▇▇ ▇▇▇▇▇▇ Its President OMAX CORPORATION By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its Chairman and CEO SHAREHOLDERS’ REPRESENTATIVE /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature page continues) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Major Shareholder (signature page continues) /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Major Shareholder (signature page continues) /s/ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇’▇▇▇▇▇▇ Major Shareholder (signature page continues) PUGET PARTNERS, L.P. Major Shareholder By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Its General Partner (signature page continues)
1.1 Effective Time of the Merger 1 1.2 Closing 1 1.3 Effects of the Merger 1
Appears in 1 contract