Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements"). (b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders. (c) By mere execution of this Agreement, Stockholders agree that: (i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative. (ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder. (iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder. (d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section. (e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 2 contracts
Sources: Merger and Acquisition Agreement (Smith Michael R), Plan of Reorganization, Merger and Acquisition Agreement (Billing Concepts Corp)
Stockholder Representative. (a) In order to administer efficiently The Stockholder Representative shall act as the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf Stockholders in respect of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders matters arising under this Agreement, and shall be authorized to act, or refrain from acting, in each case as the Stockholder Representative believes is necessary or appropriate under this Agreement, for and on behalf of Escrow the Stockholders. The Stockholders under shall be bound by all such actions taken by the Earnout Escrow Agreement Stockholder Representative and no Stockholder shall be permitted to take any such actions. The Stockholder Representative is serving as the Stockholder Representative solely for purposes of administrative convenience, and is not personally liable (except in its capacity as a Stockholder hereunder) for any of the obligations of any Stockholders hereunder, and the Indemnity Escrow Agreement Corporate Taxpayer (collectivelyon behalf of itself and its Affiliates) agrees that it will not look to the Stockholder Representative or the underlying assets of the Stockholder Representative for the satisfaction of any obligations of any of the Stockholders. The Stockholder Representative shall not be liable for any error of judgment, "Escrow Agreements")or any action taken, suffered or omitted to be taken, in connection with the performance by the Stockholder Representative of the Stockholder Representative’s duties or the exercise by the Stockholder Representative of the Stockholder Representative’s rights and remedies under this Agreement, except in the case of its bad faith or willful misconduct. No bond shall be required of the Stockholder Representative. The Stockholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Stockholder 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. Without limiting the generality of the foregoing, the Stockholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement, and to consent to any amendment hereof or thereof on behalf of all Stockholders and their respective successors. The Corporate Taxpayer shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Stockholder Representative relating to this Agreement.
(b) In The Stockholders will indemnify and hold harmless the Stockholder Representative from and against any and all Losses (as defined in the Merger Agreement) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement, in each case as such Loss is suffered or incurred; provided, that in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative dies, becomes legally incapacitated will reimburse the Stockholders the amount of such indemnified Loss to the extent attributable to such gross negligence or resigns ▇▇▇▇▇▇▇ ▇willful misconduct. ▇▇▇▇▇ shall fill such vacancy and be deemed In no event will the Stockholder Representative for all purposes; however, no change be required to advance its own funds on behalf of the Stockholders or otherwise. The Stockholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative shall be effective until Purchaser is given notice or the termination of it by the Stockholdersthis Agreement.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of The Stockholder Representative as may resign at any time by giving 30 days’ notice to any actions required the Corporate Taxpayer and the Stockholders; provided, however, in the event of the resignation or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions removal of the Stockholder Representative, a new Stockholder Representative (who shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iiireasonably acceptable to the Corporate Taxpayer) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected appointed by any action the vote or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderwritten consent of PE Greenlight Holdings, LLC.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 2 contracts
Sources: Tax Receivable Agreement (VERRA MOBILITY Corp), Tax Receivable Agreement (Gores Holdings II, Inc.)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇Byro▇ ▇▇▇▇ ▇▇▇▇▇ ll be appointed as their representative agent and attorney-in-fact (the "Stockholder Representative") and authorize him for each RedChip Stockholder, to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive actions and make any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder him under this Agreement and under the Escrow Agreements and no party shall have any cause Agreement, including the exercise of action against Purchaser for action taken by Purchaser in reliance upon actionsthe poser to (i) execute the Escrow Agreement, decisions or instructions of Stockholder Representative.
(ii) authorize delivery to FRT Indemnified Parties any amount of the General Escrow Fund in satisfaction of any claims for Damages during the Survival Period, (iii) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to any claims for Damages during the Survival Period, (iv) resolve any claims for Damages during the Survival Period, (v) take all actions, decisions, and instructions actions necessary in the judgment of the Stockholder Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the Escrow Agreement. Accordingly, the Stockholder Representative has unlimited authority and power to act on behalf of each RedChip Stockholder with respect to this Agreement and the Escrow Agreement and the disposition, settlement or other handling of all claims for Damages during the Survival Period, rights or obligations arising from and taken pursuant to each such agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to RedChip; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest in all shares held in the General Escrow Fund agree to such removal and to the identity of the substituted Stockholder Representative. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of all shares held in the General Escrow Fund. No bond shall be conclusive required of the Stockholder Representative, and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall be deemed not receive compensation for his services. Notices or communications to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to from the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion constitute notice to their percentage interest in Seller immediately before or from each of the Effective Time. The provisions hereof shall survive the Effective TimeRedChip Stockholders.
Appears in 2 contracts
Sources: Merger Agreement (Freerealtime Com Inc), Merger Agreement (Freerealtime Com Inc)
Stockholder Representative. (a) In order The Stockholder Representative shall have the authority, for and on behalf of holders of Shares (except for the holders, if any, of Dissenting Shares), to administer efficiently take such actions and exercise such discretion as are required of the implementation of this Agreement, the waiver of any conditions Stockholder Representative pursuant to the obligations to consummate the transactions or the settlement terms of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative and any such actions shall be binding on each such holder and shall include the following: ("Stockholder Representative"i) to receive, hold and authorize him deliver to take all action necessary in connection Parent and the Surviving Corporation Certificates and any other documents relating thereto on behalf of such holder; (ii) to give and accept communications and notices on behalf of such holder; (iii) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with implementation orders and awards of courts with respect to, claims against such holder; (iv) to defend, negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to, any claims or disputes related to this Agreement or the Escrow Agreement on behalf of Stockholderssuch holder; (v) to amend, supplement, change or waive any condition provision hereof, subject to or obligation compliance with the terms of this Agreement; and (vi) to consummate the transactions, give and receive notices and take any and all action contemplated actions necessary or appropriate in the sole discretion of the Stockholder Representative to be taken by or on behalf accomplish any of Stockholders under the foregoing. As the representative of such holders, the Stockholder Representative shall act as agent for each such holder and shall have authority to bind each such holder in accordance with the terms of this Agreement and the Escrow Agreement, and Parent and Merger Sub may rely on such appointment and authority. The Stockholder Representative shall be entitled to reimbursement from such holders of Escrow Stockholders under any and all fees, expenses and costs incurred in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")performance of such Stockholder Representative’s duties hereunder.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable to the holders of Shares for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and omitted to be deemed taken as Stockholder Representative except expressly as set forth herein. The Persons who immediately prior to the Effective Time held Shares and who received, or are entitled to receive, the Merger Consideration shall, in proportion to the number of Shares of Common Stock held as compared to the total number of such Shares of Common Stock outstanding (including in each such case, the number of Shares of Common Stock into which each Share of Preferred Stock held by such holder is convertible immediately prior to the Effective Time), indemnify and hold harmless the Stockholder Representative and its partners, stockholders, affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each, a “Representative Indemnified Party”) from and against all losses, liabilities, claims or expenses incurred or suffered by the Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Stockholder Representative under this Agreement or the Escrow Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of such holders, except for all purposes; howeverany such losses, no change liabilities, claims or expenses that arise on account of the Stockholder Representative’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final adjudication. None of the Representative Indemnified Parties shall be effective until Purchaser is given notice liable to any Person who immediately prior to the Effective Time held Shares in respect of it by such arrangements or actions or omissions in connection therewith, except to the Stockholdersextent that such acts or omissions constitute gross negligence or willful misconduct.
(c) By mere execution A decision, act, consent or instruction of the Stockholder Representative under or relating to this AgreementAgreement shall constitute a decision for all Persons who immediately prior to the Effective Time held Shares, Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon each such Person, and Parent and Merger Sub may rely conclusively on the instructions and decisions upon any such decision, act, consent or instruction of such Stockholder Representative as being the decision, act, consent or instruction of each such Person. Parent and Merger Sub are hereby relieved from any liability to any actions required Person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iid) all actionsIf Trilliant Gaming Nevada Inc. becomes unable to serve as Stockholder Representative, decisionssuch other Person or Persons may be designated by the holders of a majority of the Shares outstanding immediately prior to the Effective Time (including the Shares of Preferred Stock on an as-converted to Common Stock basis), and instructions of such Person or Persons shall succeed as the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunderRepresentative.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Penn National Gaming Inc), Merger Agreement (Tropicana Las Vegas Hotel & Casino, Inc.)
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders Indemnifying Parties hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent and attorney in fact as the Stockholder Representative for and on their representative ("Stockholder Representative") and authorize him behalf to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to the Parent from the Available Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of either of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. Any loss, liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative, shall be referred to herein as "Stockholder Representative Expenses". The Indemnifying Parties on whose behalf the Aggregate Escrow Amount was contributed to the Escrow Fund agree that the Stockholder Representative shall have the right to be reimbursed solely from the Escrow Fund for the Stockholder Representative Expenses. Following the termination of the Escrow Period and the resolution of all purposes; howeverpending claims made by the Parent Indemnified Parties for Losses, no change the Stockholder Representative shall have the right to recover the Stockholder Representative Expenses from any remaining portion of the Available Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, the Stockholder Representative shall deliver to Parent a certificate setting forth the Stockholder Representative Expenses to the Stockholder Representative. For the purposes of determining how many shares of Parent Common Stock the Stockholder Representative shall be effective until Purchaser entitled to recover for any Stockholder Representative Expenses hereunder, each share of Parent Common Stock shall have a value equal to the average closing sale price of one share of Parent Common Stock as reported on the Nasdaq Global Market for the ten consecutive trading days ending three trading days immediately preceding the date of payment for such Stockholder Representative Expenses. Notwithstanding the foregoing, the Stockholder Representative's right to recover Stockholder Representative Expenses shall not prejudice Parent's right to recover the full amount of indemnifiable Losses that Parent is given notice of it by entitled to recover from the StockholdersEscrow Fund.
(c) By mere execution A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.1 hereof, Stockholders agree that:
(i) Purchaser shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties; and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause as being the decision, act, consent or instruction of action against Purchaser or Surviving Corporation the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Oncothyreon Inc.), Agreement and Plan of Reorganization (Biomira Inc)
Stockholder Representative. (a) In order to administer efficiently Anthony Russo shall serve as the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns . The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ older Representative shall fill be constituted and appointed as agent for and on behalf of the Corporation Stockholders to give and receive notices and communications, to enter into any ancillary documents to give effect to the transactions described herein, to authorize delivery of the Escrow Shares or other property in satisfaction of Claims, to object to such vacancy deliveries, to make Claims on behalf of the Corporation Stockholders to agree to, negotiate, enter into settlements and be deemed Stockholder Representative for compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all purposes; however, no change actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the holders of a majority in interest of the Escrow Shares from time to time upon not less than 10 days' prior written notice to the Purchaser and the Escrow Agent, provided that any such replacement Stockholder Representative shall agree to be bound by the terms hereof and the terms of the Escrow Agreement. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of it by the Corporation Stockholders.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Corporation Stockholders shall severally indemnify and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(c) By mere execution To the extent that any of this Agreement, the Corporation Stockholders agree that:
(i) Purchaser may rely conclusively on provide the instructions and decisions of Stockholder Representative as with written directions with respect to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the voting of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken Shares beneficially owned by Purchaser in reliance upon actionssuch Corporation Stockholders, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause instruct the Escrow Agent to vote the Escrow Shares in accordance with such written directions. In the absence of action against Purchaser or Surviving Corporation for any action taken or omittedsuch directions, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall be deemed have no obligations with respect to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by the voting of the Escrow Shares. The Stockholder Representative in a disproportionate measure compared to any need not solicit the Corporation Stockholders for such directions, nor furnish proxy information or other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder documents provided to the Stockholder Representative and bind executorsor Escrow Agent by the Purchaser, heirsif any, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeCorporation Stockholders.
Appears in 1 contract
Sources: Merger Agreement (Workstream Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Company Securityholders and receiving the benefits thereof, settlement or notices under including the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him right to take all action necessary receive the consideration payable in connection with implementation the Merger, each of the Agreement Company Securityholders shall be deemed to have agreed to appoint Shareholder Representative Services LLC, a Colorado limited liability company, as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Company Securityholders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Parties from the Escrow Fund in satisfaction of claims by such Indemnified Parties pursuant to Section 8.1(a), to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Parties against any Company Securityholder or by any such Company Securityholder against any Indemnified Parties or any dispute between any Indemnified Parties and any such Company Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. The Stockholder Representative may resign or such agency may be changed by the Company Securityholders from time to time upon not less than ten (10) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a majority of the Company Capital Stock immediately prior to the Effective Time agree to such removal and to the identity of Escrow Stockholders under the Earnout Escrow Agreement substituted agent. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of a majority of the Company Capital Stock immediately prior to the Effective Time. No bond shall be required of the Stockholder Representative and the Indemnity Escrow Stockholder Representative shall not receive any compensation for its services other than pursuant to the terms of the Stockholder Representative Agreement (collectivelyentered into between Shareholder Representative Services LLC, "Escrow Agreements")the Company and certain of the Company’s stockholders on or about the date hereof. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Securityholders. Each Company Securityholder hereby agrees to receive correspondence from the Stockholder Representative.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwithout gross negligence or bad faith. The Company Securityholders shall jointly and severally indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). The Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Expense Fund Amount as such expenses arise and, to the extent that the Expense Fund Amount has been depleted, if then available after satisfaction of all claims of Indemnified Parties, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Company Securityholders, and prior to any such distribution, shall deliver to the Escrow Agent or Parent, as the case may be, a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.4 and Section 9.5, shall constitute a decision of the Company Securityholders and shall be effective until Purchaser is given notice final, binding and conclusive upon the Company Securityholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of it the Stockholder Representative as being the decision, act, consent or instruction of the Company Securityholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the StockholdersStockholder Representative.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of The Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder shall hold the Expense Fund Amount for the purpose of paying fees and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions satisfying expenses of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause incurred in connection with the discharge of action against Purchaser or Surviving Corporation for any action taken or omittedits duties under this Agreement, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without including the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees costs and expenses incurred by the Stockholder Representative in defending again any claim or liability in performing its duties on behalf of the Company Securityholders. If any of the Expense Fund Amount remains after the Stockholder Representative has discharged its duties under this Agreement (the “Expense Fund Surplus”), the Stockholder Representative shall be paid by Stockholders pro rata deliver such Expense Fund Surplus to the Paying Agent and the Paying Agent shall pay to each Company Securityholder an amount of the Expense Fund Surplus in proportion to their percentage interest in Seller immediately before respective Pro Rata Portions, with the Effective Time. The provisions hereof shall survive amount delivered to each Company Securityholder rounded to the Effective Time.nearest one hundredth (0.01) (with amounts 0.005 and above rounded up)
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of event that this AgreementAgreement is adopted by the Company Stockholders, the waiver effective upon such vote, and without any further action of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsIndemnifying Party, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇D▇▇ ▇▇▇▇ ▇▇▇▇▇ Avida shall be appointed as their representative ("the Indemnifying Parties’ agent and attorney-in-fact as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 any all other actions that are either (i) necessary or appropriate in the judgment of either of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than fifteen (15) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of at least a majority of the interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties. The Indemnifying Parties shall, based on their Pro Rata Portions of the Escrow Fund, be responsible for the payment of all action contemplated to be taken fees and expenses reasonably incurred by or on behalf of Stockholders the Stockholder Representative in performing its duties under this Agreement, and the Stockholder Representative shall have the right to have any such fees and expenses reimbursed from the Escrow Fund prior to any distribution to the Indemnified Parties of any amounts in the Escrow Stockholders under Fund, to the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")extent available.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith, no change and any act done or omitted to be done pursuant to the advice of legal counsel shall be conclusive evidence of such good faith. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative.
(c) A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision of the Indemnifying Parties and shall be effective until Purchaser is given notice of it by final, binding and conclusive upon the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser Indemnifying Parties; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any Person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under contemplated by this Agreement or actions, settlement or notices under and the Earnout Escrow Agreement or Indemnity Escrow Agreement, including the indemnification obligations of the Company Stockholders under this Article 4, the Company Stockholders hereby designate and appoint ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative representatives for purposes of this Agreement and the Escrow Agreement and as attorney-in-facts and agents for and on behalf of each Company Stockholder (each in such capacity, a "Stockholder Representative").
(b) The Company Stockholders hereby authorize each of the Stockholder Representatives, acting singly, to represent the Company Stockholders, and authorize him their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including without limitation, (i) to take all action necessary in connection with implementation the indemnification obligations of the Agreement on behalf Company Stockholders under this Article 4, including the defense or settlement of Stockholdersany claims and the making of payments with respect thereto, waive any condition (ii) to or obligation to consummate the transactions, give and receive all notices required to be given under this Agreement and the Escrow Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders under by the Stockholder Representatives pursuant to this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Agreement.
(bc) In the event Stockholder Representative diesthat ▇▇▇▇ ▇▇▇▇▇▇, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or any substitute Stockholder Representative dies, becomes unable to perform his responsibilities as Stockholder Representative or resigns from such position, the Company Stockholders having an aggregate of greater than 50% ownership interest in the Company as set forth on Schedule 2.2 hereto shall select another representative to fill such vacancy and such substituted Stockholder Representative shall be deemed to be a Stockholder Representative for all purposes; howeverpurposes of this Agreement and the Escrow Agreement.
(d) All decisions and actions by the Stockholder Representatives, no change including without limitation any agreement between the Stockholder Representatives and the Buyer or NaviSite or the Escrow Agent relating to indemnification obligations of the Stockholder Representative Company Stockholders under this Article 4, including the defense or settlement of any claims and the making of payments with respect hereto, shall be effective until Purchaser is given notice binding upon all of it the Company Stockholders, and no Company Stockholders shall have the right to object, dissent, protest or otherwise contest the same. The Stockholder Representatives shall incur no liability to the Company Stockholders with respect to any action taken or suffered by the Stockholder Representatives in reliance upon any notice, direction, instruction, consent, statement or other documents believed by them to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Company Stockholders under this Article 4, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from a Stockholder Representative's own willful misconduct or gross negligence. The Stockholder Representatives may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Stockholder Representatives shall not be liable to the Company Stockholders.
(ce) By mere execution of this AgreementThe Buyer, Stockholders agree that:
(i) Purchaser may NaviSite and the Escrow Agent shall be able to rely conclusively on the written instructions and decisions of any one Stockholder Representative with respect to the indemnification obligations of the Company Stockholders under this Article 4, including the defense or settlement of any claims or the making of payments with respect thereto, or as to any other actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements Representatives hereunder, and no party hereunder shall have any cause of action against Purchaser for action taken by Purchaser in reliance the Buyer or the Escrow Agent to the extent the Buyer, NaviSite or the Escrow Agent has relied upon actions, the written instructions or decisions or instructions of any one Stockholder Representative.
(iif) all actionsThe Company Stockholders acknowledge and agree that the Stockholder Representatives may incur costs and expenses on behalf of the Stockholders in their capacity as Stockholder Representatives ("Representative Expenses"). Each of the Company Stockholders agrees to pay the Stockholder Representatives, decisions, and instructions of promptly upon demand by the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have therefor, a cause percentage of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed Expenses equal to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other such Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage 's ownership interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeCompany as set forth on Schedule 2.2 hereto.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently The Stockholder Representative shall act as the implementation representative of this Agreement, the waiver Company Stockholders in respect of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices all matters arising under this Agreement or actionsthe Transaction Agreements after Closing, settlement and shall be authorized to act, or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreementrefrain from acting, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him with respect to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated actions to be taken by or on behalf of Stockholders any Company Stockholder or the Stockholder Representative, including to enforce any rights granted to any Company Stockholder hereunder, in each case as the Stockholder Representative believes is necessary or appropriate under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Transaction Agreements, for and on behalf of the Company Stockholders. The Company Stockholders shall be bound by all such actions taken by the Stockholder Representative and no Company Stockholder shall be permitted to take any such actions. The Stockholder Representative is serving as the Stockholder Representative solely for purposes of administrative convenience, and is not personally liable (except in its capacity as a Company Stockholder hereunder) for any of the obligations of the Company or any of Company Stockholders hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Stockholder Representative or the underlying assets of the Stockholder Representative for the satisfaction of any obligations of the Company or any of the Company Stockholders. The Stockholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Stockholder Representative of the Stockholder Representative’s duties or the exercise by the Stockholder Representative of the Stockholder Representative’s rights and remedies under this Agreement (collectivelyor any Transaction Agreement, "Escrow except in the case of its bad faith or willful misconduct. No bond shall be required of the Stockholder Representative. The Stockholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Stockholder 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 any Transaction Agreement. Without limiting the generality of the foregoing, the Stockholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Transaction Agreements"), and to consent to any amendment hereof or thereof on behalf of all Company Stockholders and their respective successors. Parent shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Stockholder Representative relating to this Agreement or any Transaction Agreement.
(b) The Company Stockholders will indemnify and hold harmless the Stockholder Representative from and against any and all Losses arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and the Transaction Agreement, in each case as such Loss is suffered or incurred; provided, that, in the event that any such Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Stockholders the amount of such indemnified Loss to the extent attributable to such gross negligence or willful misconduct. The Stockholder Representative shall be entitled to reimbursement by the Company Stockholders from funds paid to it under Section 2.13 and/or otherwise received by it in its capacity as the Stockholder Representative pursuant to or in connection with this Agreement (including for the benefit of the Company Stockholders), for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Stockholder Representative in such capacity. In the event that the Stockholder Representative diesdetermines, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy in its sole and be deemed absolute discretion, that the funds paid to the Stockholder Representative for all purposespursuant to Section 2.13 or otherwise exceed the Stockholder Representative Expenses, the Stockholder Representative shall pay such excess amount to the Company Stockholders (pro rata in accordance with the number of shares of Company Capital Stock held by each of them immediately prior to the Effective Time) as an addition to the Merger Consideration; provided, however, that notwithstanding anything to the contrary in this Agreement, in no change event shall such excess amount become payable to Parent or the Surviving Corporation. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Company Stockholders or otherwise. The Company Stockholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative shall be effective until Purchaser is given notice or the termination of it by the Stockholdersthis Agreement.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of The Stockholder Representative as may resign at any time by giving 30 days’ notice to any actions required Parent and the Company Stockholders; provided, however, in the event of the resignation or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions removal of the Stockholder Representative, a new Stockholder Representative (who shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iiireasonably acceptable to Parent) Stockholder Representative shall be deemed appointed by the vote or written consent of the Company Stockholders who held of a majority of the Company Capital Stock of the Company immediately prior to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (D8 Holdings Corp.)
Stockholder Representative. (a) In order to administer efficiently the implementation By execution of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ to act as their the agent, representative and attorney-in-fact for each Stockholder for all purposes and with respect to all matters arising under this Agreement ("in such capacity the “Stockholder Representative") ”). The powers and authority of the Stockholder Representative shall include, but not be limited to, the power and authority to give and accept notices as provided hereunder; initiate, investigate, defend, compromise, arbitrate, settle, mediate, prosecute and authorize him payment of any and all indemnification claims pursuant to take this Agreement; pay from the Purchase Price any and all action necessary outstanding bank indebtedness and advisory, accounting or legal fees and expenses incurred in connection with implementation the transactions contemplated herein; and to otherwise carry out the purposes and intent of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative Buyer shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may able to rely conclusively on the instructions and decisions of the Stockholder Representative as to the initiation, investigation, defense, compromise, arbitration, mediation, prosecution or settlement of any indemnification claim by Buyer pursuant to this Agreement or any other actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements this Agreement, and no party Party shall have any cause of action against Purchaser Buyer for any action taken by Purchaser it in reliance upon the instructions or decisions of the Stockholder Representative; nor shall any Party hereunder have any cause of action against Buyer for any failure by the Stockholder Representative to perform his obligations hereunder for any reason, whether deliberate, inadvertent, due to negligence or otherwise.
(c) All actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative in connection with discharging his duties hereunder shall be conclusive and binding on Stockholders; each Stockholder and no Stockholder shall have a any cause of action against Purchaser or Surviving Corporation the Stockholder Representative for any action taken or omittedtaken, decision made, payment made or omitted instruction given, or omission to do any instruction of the foregoing, by him under this Agreement, except for fraud in connection with, or willful breach of, this Agreement by the Stockholder Representative. In his capacity as given the Stockholder Representative, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will be acting for the convenience of Stockholders, without compensation, and, in such capacity, he shall have no duties or omitted liabilities beyond those expressly assumed by Stockholder Representative him hereunder.
(iii) . The Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action rely on any communication or document that he believes to enforce this Section.
(e) The provisions of this Section are independent be genuine. Stockholders hereby indemnify and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to hold harmless the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by against any liabilities resulting from his role as Stockholder Representative by Stockholders, except to the extent caused by or arising out of the Stockholder Representative’s gross negligence or willful misconduct. In the event of the death, resignation or incapacity of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before serve as a successor stockholder representative and he shall have all of the Effective Time. The provisions hereof shall survive rights, powers and duties of the Effective TimeStockholder Representative set out herein.
Appears in 1 contract
Stockholder Representative. (a) In order By the adoption of the Mergers, and by receiving the benefits thereof, including any consideration payable hereunder, and without any further action of the Company or any Company Security Holder, each Company Security Holder does hereby approve and shall be deemed to administer efficiently have approved Fortis Advisors LLC, a Delaware limited liability company, as of the implementation Closing as the Stockholder Representative and as the representative, exclusive agent and true and lawful attorney-in-fact for and on behalf of the Company Security Holder for all purposes under this Agreement, the Paying Agent Agreement and the Stockholder Representative Engagement Agreement, including to give and receive notices and communications, to authorize satisfaction of claims by Parent, to object to such payments, make objections with respect to Sections 1.7 and 1.8 of this Agreement, 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 with respect to Sections 1.7 and 1.8 of this Agreement, to incur and pay expenses on behalf of the Company Security Holders, and to take or refrain from taking all other actions that are either (i) necessary or appropriate in the sole judgment of the Stockholder Representative in connection with the Stockholder Representative’s powers, obligations and authority under this Agreement, the Paying Agent Agreement or the Stockholder Representative Engagement Agreement or (ii) permitted by the terms of this Agreement. Notwithstanding the foregoing, the Stockholder Representative shall have no obligation to act on behalf of the Company Security Holders, except as expressly provided herein, in the Paying Agent Agreement and in the Stockholder Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholder Representative in any ancillary agreement, schedule (other than Schedule 1.18 hereto), exhibit or the Disclosure Schedule. The Stockholder Representative may resign at any time upon at least ten (10) days prior written notice to the Advisory Group and Parent. Such agency may be changed by the Company Security Holders from time to time upon not fewer than ten (10) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless the former holders of a majority of Company Capital Stock (determined on an as-converted to Company Common Stock basis) agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the former holders of a majority of Company Capital Stock (determined on an as-converted to Company Common Stock basis). No bond shall be required of the Stockholder Representative. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Security Holders.
(b) Certain Company Security Holders have entered into an engagement agreement (the “Stockholder Representative Engagement Agreement”) with the Stockholder Representative to provide direction to the Stockholder Representative in connection with its services under this Agreement, the Paying Agent Agreement and the Stockholder Representative Engagement Agreement (such Company Security Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholder Representative Group”), shall be liable to any Company Security Holder for any action or omission by the Stockholder Representative in connection with its services pursuant to this Agreement, the Paying Agent Agreement, the Stockholder Representative Engagement Agreement and the agreements ancillary hereto, except and only to the extent resulting from the bad faith, gross negligence or willful misconduct of the Stockholder Representative. For the avoidance of doubt, the preceding sentence shall not prejudice the Stockholder Representative’s right to indemnification from the members of the Advisory Group (in their capacity as Company Security Holders) pursuant to the following sentence. The Company Security Holders shall indemnify, defend and hold harmless the Stockholder Representative Group from and against any and all losses, claims, liabilities, damages, penalties, fines, forfeitures, actions, fees, reasonable and documented out-of-pocket costs and expenses (including the reasonable and documented fees, disbursements and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment and in connection with seeking recovery from insurers), judgments and amounts paid in settlement (collectively, “Representative Losses”) to the extent arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement, the waiver Paying Agent Agreement, the Stockholder Representative Engagement Agreement or the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided that in the event that any such Representative Loss is finally adjudicated to have been primarily caused by the bad faith, gross negligence or willful misconduct of any conditions the Stockholder Representative, the Stockholder Representative shall promptly reimburse the Company Security Holders the amount of such indemnified Representative Loss to the obligations extent attributable to consummate such bad faith, gross negligence or willful misconduct. If not paid directly to the transactions or Stockholder Representative by the settlement of Company Security Holders, any dispute and notices such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, (ii) any other funds that become payable to the Company Security Holders under this Agreement at such time as such amounts would otherwise be distributable to the Company Security Holders, and (iii) the Company Security Holders directly; provided that while this Section 9.2(b) allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Security Holders from their obligation to promptly pay, in accordance with their respective Pro Rata Portions, such Representative Losses as they are suffered or actionsincurred, settlement nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or notices under otherwise. In no event shall the Earnout Escrow Stockholder Representative be required to advance or risk its own funds on behalf of the Company Security Holders 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 Paying Agent Agreement, the Stockholder Representative Engagement Agreement or Indemnity Escrow the transactions contemplated hereby or thereby. Furthermore, the Stockholder Representative shall not be required to take any action unless the Stockholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholder Representative against the costs, expenses and liabilities which may be incurred by the Stockholder Representative in performing such actions. If Parent is entitled to recovery of any amount exceeding the available balance of the Holdback, and/or the Applicable Milestone Payments in this Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("it must proceed directly against each Company Security Holder from whom it seeks recovery. The Stockholder Representative") Representative shall have no role, nor shall Parent involve it, in the recovery effort. The foregoing includes, but is not limited to, recovery for indemnity claims that are not limited by the Holdback and/or setoffs against the Applicable Milestone Payments, and authorize him to take all action necessary fee shifting and/or prevailing party provisions in connection with implementation any dispute. Absent gross negligence or willful misconduct by the Stockholder Representative that is finally adjudicated by a court of competent jurisdiction, Parent shall never seek to collect or recover any amount directly from the Stockholder Representative. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on behalf of Stockholdersliability or indemnification obligations of, waive any condition to or obligation to consummate provisions limiting the transactionsrecourse against non-parties otherwise applicable to, give and receive notices and take any and all action contemplated the Company Security Holders set forth elsewhere in this Agreement are not intended to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under applicable to the Earnout Escrow Agreement and indemnities provided to the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dieshereunder. The Company Security Holders acknowledge and agree that the foregoing indemnities shall survive the Closing, becomes legally incapacitated the resignation or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change removal of the Stockholder Representative shall be effective until Purchaser is given notice or any member of it by the StockholdersAdvisory Group or the termination of this Agreement.
(c) By mere execution Upon the Closing, the Company shall wire to the Stockholder Representative an amount equal to the Expense Fund Amount (the “Expense Fund”), which shall be held by the Representative in a segregated client account and shall be used (i) for the purposes of paying directly, or reimbursing the Stockholder Representative for, any Representative Losses pursuant to this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Paying Agent Agreement, the Stockholder Representative as to any actions required Engagement Agreement and the Related Agreements, or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actionsas otherwise determined by the Advisory Group. The Company Security Holders shall not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative is not providing any investment supervision, decisionsrecommendations or advice and shall not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, gross negligence or willful misconduct. The Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and instructions has no tax reporting or income distribution obligations. The Stockholder Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. Subject to Advisory Group approval, the Stockholder Representative may contribute funds to the Expense Fund at such time as such amounts would otherwise be distributable to the Company Security Holders. As soon as reasonably determined by the Stockholder Representative that the Expense Fund is no longer required to be withheld, the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause deliver the balance of action against Purchaser or Surviving Corporation the Expense Fund, if any, to the Paying Agent for any action taken or omittedfurther distribution to the Company Security Holders in proportion to such Company Security Holders’ respective Pro Rata Portion. For tax purposes, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative the Expense Fund shall be deemed to fulfill any fiduciary obligation to Stockholders so long treated as no Stockholder is adversely affected having been received and voluntarily set aside by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderthe Company Security Holders at the time of Closing.
(d) Remedies at law for breach Any decision, act, consent or instruction of the Stockholder Representative under this Agreement, the Paying Agent Agreement or the Stockholder Representative Engagement Agreement, including any amendment, extension or waiver of this Agreement pursuant to Section would be inadequate9.7 and Section 9.8 of this Agreement, therefore Purchaser shall constitute a decision of the Company Security Holders and shall be entitled final, binding and conclusive upon each Company Security Holder and such Company Security Holder’s successors as if expressly confirmed and ratified in writing by such Company Security Holder, and all defenses which may be available to injunctive reliefany Company Security Holder to contest, without negate or disaffirm the necessity action of proving damages the Stockholder Representative taken in an action good faith under this Agreement, the Paying Agent Agreement or the Stockholder Representative Engagement Agreement are waived. Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Security Holders. Parent is hereby relieved from any Liability to enforce this Section.
any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative. The powers, immunities and rights to indemnification granted to the Stockholder Representative Group hereunder: (eA) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving shall be irrevocable and survive the death, granted by each Stockholder to the Stockholder Representative incompetence, bankruptcy or liquidation of any Company Security Holder and bind executors, heirs, successorsshall be binding on any successor thereto, and legal representatives(B) shall survive the delivery of an assignment by any Company Security Holder of the whole or any fraction of his, her or its interest in the Holdback. All reasonable fees and expenses incurred by The Stockholder Representative shall be paid entitled to: (i) rely upon the Spreadsheet, (ii) rely upon any signature believed by Stockholders pro rata in proportion it to their percentage interest in Seller immediately before be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the Effective Time. The provisions hereof shall survive the Effective Timeapplicable Company Security Holder or other party.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Mirum Pharmaceuticals, Inc.)
Stockholder Representative. (a) In order to administer efficiently Shareholder Representative Services LLC is hereby appointed as the implementation representative, agent and attorney-in-fact for and on behalf of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices Indemnifying Parties for all purposes under this Agreement or actionsand the agreements ancillary hereto, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him including to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize satisfaction of claims by Parent, to object to such payments, 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 any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) permitted by or on behalf the terms of Stockholders under this Agreement. The Stockholder Representative may resign at any time upon at least ten (10) days prior written notice to the Indemnifying Parties. Such agency may be changed by the Indemnifying Parties from time to time upon not less than ten (10) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of Escrow Stockholders under the Earnout Escrow Agreement and substituted agent. A vacancy in the Indemnity Escrow Agreement (collectivelyposition of Stockholder Representative may be filled by the former holders of a majority of Company Capital Stock. No bond shall be required of the Stockholder Representative. After the Closing, "Escrow Agreements")notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In Neither the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed nor any member of the Advisory Committee (as defined in that certain engagement letter entered into between the Stockholder Representative for all purposes; howeverand certain of the Indemnifying Parties in connection with the transactions contemplated hereby (the “Engagement Letter”)) will incur liability of any kind with respect to any action or omission by the Stockholder Representative or the Advisory Committee in connection with their services pursuant to this Agreement, no change the Engagement Letter and the agreements ancillary hereto, except to the extent resulting from the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable. For the avoidance of doubt, the preceding sentence shall be effective until Purchaser not prejudice the Stockholder Representative’s right to indemnification from the members of the Advisory Committee (in their capacity as Indemnifying Parties) pursuant to the following sentence. The Indemnifying Parties will indemnify, defend and hold harmless the Stockholder Representative and each member of the Advisory Committee from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and reasonable out-of-pocket costs and expenses (including the out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Stockholder Representative’s or the Advisory Committee’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is given notice of it suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the Stockholdersbad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable, the Stockholder Representative or such member of the Advisory Committee, as applicable, will promptly reimburse the Indemnifying Parties the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Indemnifying Parties, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund, (ii) the Escrow Amount at such time as remaining amounts would otherwise be distributable to the Indemnifying Parties, and (iii) the Escrow Shares at such time as remaining amounts would otherwise be distributable to the Indemnifying Parties; provided, that while this section allows the Stockholder Representative to be paid from the Expense Fund, the Escrow Amount and the Escrow Shares, this does not relieve the Indemnifying Parties from their obligation to promptly pay, in accordance with their respective Pro Rata Portions, such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(c) By mere execution Upon the Closing, the Company will wire to the Stockholder Representative an amount of $1,000,000.00 in cash (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Indemnifying Parties will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver the balance of the Expense Fund to Parent or Parent’s paying agent for further distribution to the Indemnifying Parties. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Indemnifying Parties at the time of Closing.
(d) A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.3 and Section 8.4 hereof, Stockholders agree that:
(i) Purchaser shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties. Parent may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any Liability to any actions required Person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iie) all actionsFrom time to time following the Closing, decisionsthe Stockholder Representative may instruct the Escrow Agent by written notice (with copy to Parent) to sell shares of Parent Common Stock then comprising Escrow Shares, and instructions the proceeds of such sale shall be deposited in the Escrow Amount to constitute partial security for the benefit of the Indemnified Parties with respect to any indemnifiable Losses under this Article VII; provided that the Stockholder Representative shall not be conclusive and binding permitted to so instruct the Escrow Agent at any time that the price of Parent Common Stock as reported on Stockholders; no Stockholder shall have a cause NYSE is below the Parent Trading Price. Upon consummation of action against Purchaser or Surviving Corporation for any action taken or omittedsuch sale, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall be deemed deliver to fulfill any fiduciary obligation to Stockholders Parent a written confirmation of the number of shares of Parent Common Stock so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative sold and the amount of cash so deposited in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequatethe Escrow Amount, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative shall update the Spreadsheet for (i) the aggregate amount of cash and bind executors, heirs, successors, the aggregate number of shares of Parent Common Stock then in the Escrow Amount and legal representatives. All reasonable fees (ii) the allocation of such cash and expenses incurred by Stockholder Representative shall stock with respect to each Indemnifying Party (with proceeds of any sale of Escrow Shares pursuant to this Section 7.8(e) to be paid by Stockholders allocated pro rata among the Indemnifying Parties in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timenumber of Escrow Shares attributable to each Indemnifying Party).
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
Stockholder Representative. (a) In order to administer efficiently By voting in favor of the implementation adoption of this Agreement, the waiver approval of any conditions the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary consideration payable in connection with implementation the Merger, each Company Seller shall be deemed to have appointed, and Shareholder Representative Services LLC is hereby appointed, as of the Agreement Closing, as the representative, agent and attorney-in-fact for and on behalf of Stockholdersthe Company Sellers for all purposes under this Certain information has been excluded from this agreement (indicated by “[***]”) because such information (i) is not material and (ii) would be competitively harmful if publicly disclosed. Agreement and the agreements ancillary hereto, waive any condition including to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications, to be taken authorize satisfaction of claims by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill , to object to such vacancy payments, to agree to, negotiate, enter into settlements and be deemed Stockholder Representative for compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) permitted by the terms of this Agreement. The Stockholder Representative may resign at any time upon at least ten (10) days prior written notice to the Company Sellers. Such agency may be changed by the Company Sellers from time to time upon not less than ten (10) days prior written notice to Parent; provided, that the Stockholder Representative may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the former holders of a majority of Company Capital Stock. No bond shall be effective until Purchaser is given required of the Stockholder Representative. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Sellers.
(b) Neither the Stockholder Representative nor any member of it the Advisory Committee (as defined in that certain engagement letter entered into between the Stockholder Representative and certain of the Company Sellers in connection with the transactions contemplated hereby (the “Engagement Letter”)) shall incur liability of any kind with respect to any action or omission by the StockholdersStockholder Representative or the Advisory Committee in connection with their services pursuant to this Agreement, the Engagement Letter and the agreements ancillary hereto, except to the extent resulting from the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable. For the avoidance of doubt, the preceding sentence shall not prejudice the Stockholder Representative’s right to indemnification from the members of the Advisory Committee (in their capacity as Company Sellers) pursuant to the following sentence. The Company Sellers shall indemnify, defend and hold harmless the Stockholder Representative and each member of the Advisory Committee from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and out-of-pocket costs and expenses (including the reasonable out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Stockholder Representative’s or the Advisory Committee’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable, the Stockholder Representative or such member of the Advisory Committee, as applicable, shall promptly reimburse the Company Sellers the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Sellers, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund Account or (ii) any other funds that become payable to the Company Sellers under this Agreement at such time as such amounts would otherwise be distributable to the Company Sellers; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Sellers from their obligation to promptly pay, in accordance with their respective pro rata portions, such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event shall the Stockholder Representative be required to advance its own funds on behalf of the Company Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The Company Sellers acknowledge and agree that the foregoing indemnities shall survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(c) By mere execution of this AgreementUpon the Closing, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions Company shall wire to an account of Stockholder Representative as to any actions required set forth on the Allocation Schedule (the “Expense Fund Account”) an amount of $250,000 in cash (the “Expense Fund”), which shall be used for the purposes of paying directly, or permitted to be taken by Stockholders or reimbursing the Stockholder Representative hereunder for, any third party expenses pursuant to this Agreement and under the Escrow Agreements agreements ancillary hereto. The Company Sellers shall not receive any interest or earnings on the Expense Fund and no party shall have any cause of action against Purchaser for action taken irrevocably transfer and assign Certain information has been excluded from this agreement (indicated by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
“[***]”) because such information (i) is not material and (ii) all actionswould be competitively harmful if publicly disclosed. to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative shall not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, decisionsgross negligence or willful misconduct. The Stockholder Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and instructions shall not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative shall be conclusive deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Company Security Holders the portion of such balance payable pursuant to Section 1.7(a), Section 1.7(b)(i) and binding on StockholdersSection 1.7(c), as applicable; no Stockholder shall have provided, that as a cause of action against Purchaser or Surviving Corporation for any action taken or omittedcondition to Parent’s and Paying Agent’s obligation to make such payments, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the portion of such Expense Fund distribution payable to each Company Seller. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Sellers at the time of Closing. Any tax required to be withheld with respect to the deemed payment to fulfill any fiduciary obligation a Company Seller of its portion of the Expense Fund shall reduce the amount of cash to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative such Person at Closing in a disproportionate measure compared to any other Stockholderrespect of Company Capital Stock and shall not reduce the Expense Fund.
(d) Remedies at law for breach A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section would be inadequate9.6 and Section 9.7 hereof, therefore Purchaser shall constitute a decision of the Company Sellers and shall be entitled to injunctive relieffinal, without binding and conclusive upon the necessity Company Sellers. Parent may rely upon any such decision, act, consent or instruction of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorsas being the decision, heirsact, successorsconsent or instruction of the Company Sellers. Parent is hereby relieved from any Liability to any Person for any acts done by them in accordance with such decision, and legal representatives. All reasonable fees and expenses incurred by act, consent or instruction of the Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Cardlytics, Inc.)
Stockholder Representative. (a) In order Each Management Investor hereby designates and appoints (and each Permitted Transferee of each such Management Investor is hereby deemed to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute have so designated and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint appointed) ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ as their representative ▇▇▇▇, with full power of substitution (the "Stockholder Management Investor Representative") ), as the representative ---------------------------------- of each such person to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by any such person and authorize him hereby acknowledges that the Management Investor Representative shall be the only person authorized to take all any action necessary so required, authorized or contemplated by this Agreement by each such person. Each such person further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such person. Each such person hereby authorizes (and each such Permitted Transferee will be deemed to have authorized) the other parties hereto to disregard any notice or other action taken by such person pursuant to this Agreement except for the Management Investor Representative. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Management Investor Representative and are and will be entitled and authorized to give notices only to the Management Investor Representative for any notice contemplated by this Agreement to be given to any such person. A successor to the Management Investor Representative may be chosen by a majority in connection with implementation interest of the Agreement on behalf of Shares held by the Management Investors, provided that notice thereof is given by the new Management Investor Representative to the Company and to the other Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In The Stockholders agree that the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Management Investor Representative shall be effective until Purchaser is given notice not have any liability arising out of it by or in connection with the Stockholders.
(c) By mere execution exercise of his powers or the discharge of his duties hereunder while acting as a representative under this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as except that such representative shall be subject to liability for his gross negligence or willful misconduct. Such representative shall not in any event be liable with respect to any actions required action taken or permitted omitted to be taken by Stockholders him in good faith or Stockholder Representative hereunder in accordance with and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions the opinion of counsel or instructions of Stockholder Representativeindependent auditors or upon information obtained by him from any governmental authority or other specialist.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇P▇▇▇ ▇▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith and in the exercise of reasonable judgment. The Stockholders shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders.
Stockholder Representative (c) By mere execution “Stockholder Representative Expenses”). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under contemplated by this Agreement or actions, settlement or notices under and the Earnout Escrow Agreement or Indemnity Escrow Agreement, including the indemnification obligations of the Company Stockholders under this Article VIII, the Company Stockholders hereby designate and appoint G. Felda Hardymon as their sole and exclusive representative for purpos▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ eement and the Escrow Agreement and as their representative attorneys-in-fact and agent for and on behalf of each Company Stockholder (in such capacity, the "Stockholder Representative"), and G. Felda Hardymon accepts such appointment as Stockholder Representativ▇.
(b) The Company Stockholders hereby authorize the Stockholder Representative to represent the Company Stockholders, and authorize him their successors, with respect to all matters arising under this Agreement and the Escrow Agreement, including without limitation, (i) to take all action necessary in connection with implementation the indemnification obligations of the Stockholders under this Article VIII, including the defense or settlement of any claims and the making of payments with respect thereto, (ii) to give and receive all notices required to be given by or to any Company Stockholder under this Agreement and the Escrow Agreement, (iii) to execute the Escrow Agreement for and on behalf of the Company Stockholders, waive any condition and (iv) to or obligation to consummate the transactions, give and receive notices and take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders under by the Stockholder Representative pursuant to this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Agreement.
(bc) In the event that G. Felda Hardymon or any substitute Stockholder Representative dies, becomes legally incapacitated or resigns be▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ o perform his responsibilities as Stockholder Representative or resigns from such position, the Company Stockholders having an aggregate Ownership Percentage Interest as set forth on the Closing Stockholder Schedule referred to in Section 2.1(g) greater than 50% shall select another representative to fill such vacancy and such substituted Stockholder Representative shall be deemed to be the Stockholder Representative for all purposes; howeverpurposes of this Agreement and the Escrow Agreement.
(d) All decisions and actions by the Stockholder Representative, including without limitation any agreement between the Stockholder Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Stockholders under this Article VIII, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Company Stockholders, and no change Company Stockholders shall have the right to object, dissent, protest or otherwise contest the same. The Stockholder Representative shall incur no liability to the Company Stockholders with respect to any action taken or suffered by the Stockholder Representative in reliance upon any notice, direction, instruction, consent, statement or other documents believed by him to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Company Stockholders under this Article VIII, including the defense or settlement of any claims and the making of payments with respect thereto, except to the extent resulting from the Stockholder Representative's own willful misconduct or gross negligence. The Stockholder Representative may, in all questions arising under this Agreement or the Escrow Agreement rely on the advice of counsel, and shall not be liable to the Company Stockholders for anything done, omitted or suffered in good faith by the Stockholder Representative. The Company Stockholders shall severally indemnify the Stockholder Representative and hold him or her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it by or in connection with the Stockholdersacceptance or administration of his or her duties hereunder.
(ce) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may The Buyer and the Escrow Agent shall be able to rely conclusively on the instructions and decisions of the Stockholder Representative with respect to the indemnification obligations of the Company Stockholders under this Article VIII, including the defense or settlement of any claims or the making of payments with respect thereto, or as to any other actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements hereunder, and no party hereunder shall have any cause of action against Purchaser for action taken by Purchaser in reliance the Buyer or the Escrow Agent to the extent the Buyer or the Escrow Agent has relied upon actions, the instructions or decisions or instructions of the Stockholder Representative.
(iif) all actions, decisions, The Company Stockholders acknowledge and instructions of agree that the Stockholder Representative shall be conclusive may incur costs and binding expenses on Stockholders; no Stockholder shall have a cause behalf of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction the Company Stockholders in his capacity as given or omitted by Stockholder Representative hereunder.
(iii) "Representative Expenses"). Each of the Company Stockholders agrees to pay the Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected Representative, promptly upon demand by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorstherefor, heirsa percentage of any Representative Expenses equal to such Company Stockholder's Ownership Percentage Interest as set forth on the Closing Stockholder Schedule referred to in Section 2.1(g), successors, and legal representatives. All reasonable fees and expenses incurred by provided that no Company Stockholder Representative shall be paid by Stockholders pro rata required to pay, in proportion the aggregate, Representative Expenses in an amount in excess of the value of such Company Stockholder's Ownership Percentage Interest in the Escrow Shares initially deposited in escrow pursuant to their percentage interest in Seller immediately before Section 2.3(b) (valuing the Effective Time. The provisions hereof shall survive Escrow Shares for this purpose at $84.5705 per share, subject to splits, combinations and the Effective Timelike affecting Buyer Common Stock).
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation By virtue of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation approval of the Agreement Merger, each Stockholder designates and appoints the Stockholder Representative as such Stockholder's agent and attorney-in-fact with full power and authority to act for and on behalf of Stockholders, waive any condition each Stockholder to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications, to be taken by or accept service of process on behalf of the Stockholders pursuant to Article 9 and Section 11.11, to agree to, negotiate, enter into settlements and compromises of, and comply with Judgments of courts or other Governmental Authorities and awards of arbitrators, with respect to, any Indemnification Claims by any Purchaser Indemnified Party against any Series G Holder pursuant to Article 9 and to take all actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from the Stockholder Representative constitute notice to or from each of the Stockholders for all purposes under this Agreement. The Stockholder Representative may delegate its authority as Stockholder Representative to any one of the Series G Holders for a fixed or indeterminate period of time upon not less than ten (10) Business Days' prior written notice to the Purchaser in accordance with Section 11.2. In the event of the death or incapacity of the Stockholder Representative, a successor Stockholder Representative will be elected promptly by the Series G Holders whose interests aggregate not less than a majority of the Net Merger Consideration and the Series G Holders will so notify the Purchaser. Each successor Stockholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Stockholder Representative, and the term "Stockholder Representative" as used in this Agreement includes any successor Stockholder Representative appointed in accordance with this Agreement. A decision, act, consent or instruction of Escrow the Stockholder Representative constitutes a decision of all the Stockholders under and is final, binding and conclusive upon the Earnout Escrow Agreement Stockholders, and the Indemnity Escrow Purchaser and any Indemnified Party may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. The Purchaser is hereby relieved from any Liability to any Person for any acts done or omissions by the Purchaser in accordance with such decision, act, consent or instruction of the Stockholder Representative. Without limiting the generality of the foregoing, the Purchaser is entitled to rely, without inquiry, upon any document delivered by the Stockholder Representative as being genuine and correct and having been duly signed or sent by the Stockholder Representative. The Stockholder Representative will have no Liability to any Person for any act done or omitted under this Agreement as the Stockholder Representative while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Series G Holders will severally indemnify and hold harmless the Stockholder Representative from and against any Losses the Stockholder Representative may suffer as a result of any such action or omission. The Stockholder Representative will receive no compensation for services as the Stockholder Representative. The Series G Holders will reimburse the Stockholder Representative, on the basis of their respective Pro Rata Shares of the Net Merger Consideration, for professional fees and expenses of any attorney, accountant or other advisors retained by the Stockholder Representative and other reasonable out-of- pocket expenses incurred by the Stockholder Representative in connection with the performance of the Stockholder Representative's duties under this Agreement (collectively, the "Escrow AgreementsRepresentative Expenses").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change none of the Stockholder Representative shall Expenses will be effective until Purchaser is given notice paid from the Escrow Amount. This appointment and grant of it power and authority by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative pursuant to this Section 11.1 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and bind executorsmay not be terminated by the act of any Stockholder or by operation of Law, heirswhether upon the death or incapacity of any Stockholder, successors, and legal representatives. All reasonable fees and expenses incurred or by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timeoccurrence of any other event.
Appears in 1 contract
Sources: Merger Agreement (Adaptec Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute First Merger and notices under this Agreement or actionsby the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ D▇▇▇▇ ▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of two-thirds in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for his services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith and in the exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Stockholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Stockholders and shall be effective until Purchaser is given notice of it by final, binding and conclusive upon the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser ; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently The stockholders, by virtue of their approval of the implementation of this Agreement, will be deemed to have irrevocably constituted and appointed, effective as of the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsEffective Time, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative (together with his or its permitted successors, the "Stockholder Representative") ), as their true and authorize him lawful agent and attorney-in-fact to take all action necessary enter into any agreement in connection with implementation the transactions contemplated by this Agreement and any transactions contemplated by the Escrow Agreement, to exercise all or any of the Agreement powers, authority and discretion conferred on behalf of Stockholdershim or it under any such agreement, to waive any condition terms and conditions of any such agreement (other than the Merger Consideration), to or obligation to consummate the transactions, give and receive notices on their behalf and take any and all action contemplated to be their exclusive representative with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by any such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or proceeding for which the Parent or the Merger Sub may be entitled to indemnification and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in- fact. This power of attorney is coupled with an interest and is irrevocable. The Stockholder Representative shall not be liable for any action taken or not taken by him or on behalf it in connection with his or its obligations under this Agreement (i) with the consent of Stockholders under who, as of the date of this Agreement, and owned 66 2/3 in number of Escrow Stockholders under the Earnout Escrow Agreement and outstanding shares of Common Stock (treating the Indemnity Escrow Agreement Preferred Stock on an as-converted basis) or (collectively, "Escrow Agreements").
(bii) In in the event Stockholder Representative dies, becomes legally incapacitated absence of his or resigns its own gross negligence or wilful misconduct. If ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fill be unable or unwilling to continue to serve as the Stockholder Representative, then ▇▇▇▇ ▇▇▇▇▇▇ shall be the Stockholder Representative. If ▇▇▇▇ ▇▇▇▇▇▇ shall be unable or unwilling to serve in such vacancy and capacity, then his or its successor shall be deemed Stockholder Representative for all purposes; however, no change named by those persons holding 66 of the Stockholder Representative shares of Common Stock outstanding (treating the Preferred Stock on an as-converted basis) at the Effective Time who shall be effective until Purchaser is given notice serve and exercise the powers of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Registry Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Requisite Stockholder Approval, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation each of the Agreement Company Holders shall be deemed to have agreed to appoint Shareholder Representative Services LLC as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Company Holders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Account in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and bring suit and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Company Holder or by any such Company Holder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Holder, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Company Holders from time to time upon not less than thirty (30) days prior Written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a majority interest of the Escrow Account agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the vote of holders of a majority in interest of the Escrow Stockholders under Account. No bond shall be required of the Earnout Escrow Agreement Stockholder Representative. With respect to matters set forth in Section 1.7, Article VI and Article VIII, notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Company Holders.
(b) In The Stockholder Representative shall not be liable to any Company Holder for any act done or omitted hereunder as Stockholder Representative while acting in good faith and absent its gross negligence or bad faith. The Company Holders shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative dies, becomes legally incapacitated will reimburse the Company Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or resigns ▇▇▇▇▇▇▇ ▇willful misconduct. ▇▇▇▇▇ shall fill such vacancy and be deemed If not paid directly to the Stockholder Representative for all purposesby the Company Holders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Fund, and (ii) the amounts in the Escrow Account at such time as remaining amounts would otherwise be distributable to the Company Holders; howeverprovided, that while this section allows the Stockholder Representative to be paid from the Stockholder Representative Fund and the Escrow Account, this does not relieve the Company Holders from their obligation to promptly pay, in accordance with their Pro Rata Portion of such Representative Losses in an amount not to exceed the aggregate proceeds received by each such Company Holder hereunder (reduced by the aggregate amount of indemnification payments required to be paid by such Company Holder pursuant to Article VIII), such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no change event will the Stockholder Representative be required to advance its own funds on behalf of the Company Holders or otherwise. The Company Holders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative or the termination of this Agreement. A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Sections 9.3 and 9.4 hereof, shall constitute a decision of the Company Holders and shall be effective until Purchaser final, binding and conclusive upon the Company Holders; and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Holders. Parent is given notice hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of it by the StockholdersStockholder Representative.
(c) By mere execution of The Stockholder Representative shall be entitled to withdraw cash amounts held in the Stockholder Representative Fund in reimbursement for its out-of-pocket expenses incurred in performing its obligations under this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively . The Company Holders will not receive any interest or earnings on the instructions and decisions of Stockholder Representative as Fund and irrevocably transfer and assign to any actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements and no party shall any ownership right that they may otherwise have had in any cause such interest or earnings. The Stockholder Representative will not be liable for any loss of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions principal of the Stockholder Representative shall be conclusive Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and binding on Stockholders; no will not voluntarily make these funds available to its creditors in the event of bankruptcy. Contemporaneous with or as soon as practicable following the completion of the Stockholder shall have a cause Representative’s duties, the Stockholder Representative will deliver the balance of action against Purchaser or the Stockholder Representative Fund to (i) the Depository Agent for further distribution to the Company Holders (other than Employee Cashed-Out Option Holders) by wire transfer of immediately available funds to the account designated by such Company Holder for such purpose and (ii) the Surviving Corporation for any action taken payment to the Employee Cashed-Out Option Holders through the Surviving Corporation’s payroll system, in each case, in accordance with the Closing Allocation Schedule and, for the avoidance of doubt, such payments shall not be subject to information reporting or omitted, decision made or omitted or any instruction as given or omitted by tax withholding. The Stockholder Representative hereunder.
(iii) Stockholder Representative Fund Amount shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected have been received by any action or failure to act by Stockholder Representative the Company Holders at the Closing (in a disproportionate measure compared to any other Stockholder.
(daccordance with their respective Pro Rata Portions) Remedies at law for breach of this Section would be inadequate, therefore Purchaser U.S. federal and applicable state and local income Tax purposes and then each Company Holder shall be entitled deemed to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder have voluntarily contributed such amount to the Stockholder Representative and bind executorsFund, heirsany withholding in respect thereof shall be satisfied from the portion of the Initial Merger Consideration owing to the Company Holders on the Closing Date and, successorsfor the avoidance of doubt, and legal representatives. All reasonable fees and expenses incurred by the amount of the Stockholder Representative Fund that is returned to the Company Holders shall not again be paid by Stockholders pro rata in proportion subject to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timeinformation reporting or Tax withholding.
Appears in 1 contract
Sources: Merger Agreement (NetApp, Inc.)
Stockholder Representative. (a) In order to administer efficiently Upon the implementation adoption of this Agreement, Agreement and the waiver approval of the First Merger and the transactions contemplated hereby by the Company Stockholders and without further act of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsCompany Stockholder, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("the “Stockholder Representative"”) and authorize him shall be appointed as the Stockholder Representative hereunder to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take communications, to authorize payment to any Parent Indemnified Party from the Escrow Fund in satisfaction of claims and all action contemplated Losses by a Parent Indemnified Party, to be taken by object to such payments, 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 or Losses, to receive payments on behalf of the Company Stockholders due and owing pursuant to this Agreement and acknowledge receipt thereof, to waive any breach or default of Parent, Merger Sub or Merger Sub II under this AgreementAgreement following the First Effective Time, to calculate the Aggregate Consideration Spreadsheet, to receive service of process on behalf of the Company Stockholders in connection with any claims under this Agreement or any related document or instrument, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement; provided, however that such agency shall apply only to matters affecting all or most of the Company Stockholders and any matter that affects only an individual Company Stockholder shall be addressed by Parent and such Company Stockholder. Such agency may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Stockholders under Fund agree to such removal and to the Earnout identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Agreement Fund. No bond shall be required of the Stockholder Representative, and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Stockholders.
(b) In Except for intentional fraud, the event Stockholder Representative diesshall not be liable for any act done or omitted hereunder as Stockholder Representative. Pursuant to the following sentence, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and to the fullest extent permitted by applicable Law, the Company Stockholders shall fill be, severally based on such vacancy Company Stockholder’s Pro Rata Portion of the Company Stock Merger Consideration and be deemed not jointly, obligated to indemnify the Stockholder Representative for all purposes; howeverand hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. At the time of distribution pursuant to Section 9.3(b) to the Company Stockholders of any proceeds remaining in the Escrow Fund, the Stockholder Representative shall be effective until Purchaser is given notice entitled to deduct and withhold from such income and gains included in such distribution to pay and reimburse fees and expenses of it by third parties incurred or expected to be incurred in connection with its role as Stockholder Representative pursuant to this Agreement to the Stockholdersextent that the Stockholder Representative Reserve would be insufficient to pay and reimburse fees and expenses of third parties.
(c) By mere execution The grant of authority provided for in this Section 10.1(a) is coupled with an interest and is being granted, in part, as an inducement to Parent, Merger Sub and Merger Sub II to enter into this Agreement, and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of the Company or any Company Stockholder shall be binding on any successor thereto and (ii) shall survive the delivery of an assignment by any Company Stockholder of the whole or any fraction of his, her or its interest in the Escrow Fund.
(d) In connection with the performance of its obligations hereunder, the Stockholder Representative shall have the right at any time and from time to time to select and engage, at the cost and expense of the Company Stockholders (as contemplated by Section 10.1(b)), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Stockholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(e) In dealing with this Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representative hereunder or thereunder, (i) the Stockholder Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to the Company Stockholders, Parent or the Surviving Company by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or any such other agreement, instrument or document other than with respect to intentional fraud of the Stockholder Representative, and (ii) the Stockholder Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representative pursuant to such advice shall in no event subject the Stockholder Representative to liability to the Company Stockholders, Parent or the Surviving Company.
(f) All of the immunities and powers granted to the Stockholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement, Stockholders agree that:.
(ig) Purchaser A decision, act, consent or instruction of the Stockholder Representative, including an extension or waiver of this Agreement pursuant to Article IV or Section 10.5, as applicable, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders; and Parent and the Surviving Company may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of the Company Stockholders. Parent and the Surviving Company are hereby relieved from any Liability to any actions required Person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iih) The Stockholder Representative has all actionsrequisite power, decisionsauthority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Stockholder Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the “Stockholder Representative Documents”), and instructions to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Stockholder Representative shall be conclusive Documents, the performance of its respective obligations hereunder and binding thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on Stockholders; no the part of the Stockholder shall have a cause Representative. This Agreement has been, and each of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by the Stockholder Representative hereunder.
(iii) Stockholder Representative shall Documents will be deemed at or prior to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected the Closing, duly and validly executed and delivered by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors(assuming the due authorization, heirs, successorsexecution and delivery by the other parties hereto and thereto) this Agreement constitutes, and legal representatives. All reasonable fees and expenses incurred by each of the Stockholder Representative shall be paid by Stockholders pro rata Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Stockholder Representative enforceable against it in proportion accordance with their respective terms, subject to their percentage interest applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timea proceeding at law or in equity).
Appears in 1 contract
Sources: Merger Agreement (Revolution Lighting Technologies, Inc.)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Party or by any Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any Indemnifying Party, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be effective until Purchaser is given notice of it by final, binding and conclusive upon the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser Indemnifying Parties; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. The Sellers shall, by executing the Agreement shall be deemed to have consented to and approved: (ai) In order the use of the Escrow Account to administer efficiently satisfy the implementation of claims and rights under Article IX hereof and otherwise in accordance with this Agreement, ; (ii) the waiver appointment of any conditions to dr. Pál Jalsovszky (the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("“Stockholder Representative"”) as the representatives in accordance with this Section 11.16 hereof as representative of each Seller and authorize him to take all action necessary in connection with implementation of the Agreement as attorney-in-fact and agent for and on behalf of Stockholderseach such Seller. Upon appointment, waive any condition the Stockholder Representative shall have full power and authority, including power of substitution, acting in the name of and for and on behalf of such Seller, to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders actions and make any and all decisions under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow other Ancillary Agreements which the Stockholder Representative, in its sole discretion, deems necessary or proper, including (i) to amend, waive or consent to any provision of this Agreement and the other Ancillary Agreements, (collectivelyii) to negotiate, "Escrow Agreements").
settle, compromise or otherwise resolve all claims relating to indemnification or reimbursement pursuant to Article IX in its sole discretion, (biii) In to do all other things and to take all other actions under or related to this Agreement and the event other Ancillary Agreements which, in their discretion, they may consider necessary or proper to effectuate the transactions contemplated hereunder and thereunder to enforce and to protect the rights and interests of the Sellers (including the Stockholder Representative diesRepresentative, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy in its capacity as a Seller) and be deemed Stockholder Representative for all purposes; however, no change to enforce and protect the rights and interests of the Stockholder Representative arising out of or under or in any manner relating to this Agreement and the other Ancillary Agreements, (iv) to resolve any dispute with Purchaser and its Affiliates over any aspect of this Agreement and the other Ancillary Agreements on behalf of such Sellers, and (v) to enter into any contract, in each case to effectuate any of the foregoing from time to time which shall be effective until Purchaser is given notice have the effect of it binding such Sellers as if such Sellers had personally entered into such contract or made such decision or taken such action. All decisions and determinations made by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action have been made on behalf of all of the Sellers. A decision, act, consent or failure to act by instruction of the Stockholder Representative in will constitute a disproportionate measure compared decision of all the Sellers and will be final, binding and conclusive upon each such Seller, and Purchaser and its Affiliates may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of each such Seller. Purchaser and its Affiliates are hereby relieved from any damages to any other Stockholder.
(d) Remedies at law person for breach any acts done by it in accordance with such decision, act, consent or instruction of this Section would be inadequate, therefore Purchaser the Stockholder Representative. Any person required to give notice to the Sellers hereunder shall be entitled deemed to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder have validly delivered such notice if such notice was delivered to the Stockholder Representative in accordance with the provisions of Section 11.1. Upon the resignation, death, disability or refusal to act of the Stockholder Representative, the Sellers may appoint a successor Stockholder Representative. If within 15 days of such resignation, death, disability or refusal to act, a successor Stockholder Representative is not appointed pursuant to the preceding sentences of this Section 11.15, the Sellers having an aggregate ownership interest of more than 50 percent may appoint a successor Stockholder Representative by written consent or at a meeting of the Sellers called for the purpose of electing a successor Stockholder Representative. If the Sellers fail to appoint a successor Stockholder Representative, any holder of an ownership interest may petition any court of competent jurisdiction for the appointment of a successor Stockholder Representative. This appointment and bind executors, heirs, successorspower of attorney shall be deemed coupled with an interest, and legal representativesall authority conferred hereby shall be irrevocable and shall not be subject to termination by operation of law, whether by death, incapacity, liquidation, or dissolution of any Seller or the occurrence of any other event or events, including assignment by an Seller of any portion of such Seller’s interest hereunder. All reasonable fees and expenses incurred In the event this Agreement is terminated pursuant to Article X prior to Closing, the appointment contemplated by this Section 11.15 shall immediately terminate. The Stockholder Representative shall not be paid liable to any party hereto for any action taken or not taken by Stockholders pro rata him or her under the terms hereof or the terms of his or hers appointment as Stockholder Representative, in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timeabsence of gross negligence or willful misconduct on his or her part.
Appears in 1 contract
Sources: Stock Purchase Agreement (Albany Molecular Research Inc)
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, undersigned Stockholders hereby appoint constitutes and appoints Parent and Ross ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇▇ serve as the stockholder representatives (the "STOCKHOLDERS' REPRESENTATIVES") for and on behalf of all of the Stockholders, to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to take all other actions on behalf of the Stockholders as is explicitly contemplated by this Agreement or the related documents and to take all actions necessary or appropriate in the judgment of the Stockholders' Representatives for the accomplishment of the foregoing. ▇▇▇▇▇ No bond shall fill such vacancy be required of the Stockholders' Representatives, and the Stockholders' Representatives shall receive no compensation for its services. Notices or communications to or from the Stockholders' Representatives shall constitute notice to or from each Stockholder. If either of the persons or entities named in the first sentence of this Section 10.17(a) as constituting the Stockholders' Representatives submits his or its resignation as such, to Purchaser and the other person constituting the Stockholders' Representatives, the remaining person and/or entity shall thereafter be deemed Stockholder Representative the Stockholders' Representatives for all purposes; howeverpurposes of this Agreement.
(b) The Stockholders' Representatives shall not be liable for any act done or omitted hereunder as Stockholders' Representatives while acting in good faith and in the exercise of reasonable judgment. Notwithstanding the foregoing, no change any act done or omitted pursuant to the advice of counsel or with the consent of stockholders holding two-thirds of the Stockholder Representative Purchaser Common Stock issued to all of the Stockholders shall be effective until Purchaser is given notice conclusive evidence of it by such good faith. The Stockholders shall severally indemnify the Stockholders' Representatives and hold them harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders' Representatives and arising out of or in connection with the acceptance or administration of his or its duties hereunder.
(c) By mere execution A decision, act, consent or instruction of this Agreementthe Stockholders' Representatives shall require the consent of both of the Stockholder's Representatives, subject to the last sentence of Section 10.17(a) above, and shall constitute a decision of all Stockholders agree that:
(i) and shall be final, binding and conclusive upon each such Stockholder, and the Purchaser may rely conclusively on upon any decision, act, consent or instruction of the instructions Stockholders' Representatives as being the decision, act, consent or instruction of each and decisions of Stockholder Representative as every such Stockholder. Purchaser is hereby relieved from any liability to any actions required Person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder' Representatives.
(d) Remedies at law for breach Purchaser will afford the Stockholders' Representatives reasonable access to the properties, books and records of Company as the Stockholders' Representatives may reasonably request to perform their duties as set forth in this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section10.17.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to efficiently administer efficiently the implementation matters described in paragraph (c) of this AgreementSection 8.15, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇▇ Capital is hereby designated as the representative of the ▇▇▇▇ ▇▇▇▇▇ as their representative Stockholders (the "Stockholder Representative") and authorize him appointed as agent and attorney-in-fact with full power to execute, acknowledge, deliver, and file any instrument, agreement, release, or document necessary or appropriate for any such purpose.
(b) If the Stockholder Representative enters into any voluntary or involuntary dissolution, bankruptcy or insolvency proceedings or otherwise becomes unable to perform its responsibilities hereunder or resigns from such position, ▇▇▇▇▇▇▇ Stockholders who had a majority of the shares of SH Capital Stock held by all ▇▇▇▇▇▇▇ Stockholders on the date hereof shall, within ten (10) days after such event, select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholder Representative for all purposes of this Agreement.
(c) The Stockholder Representative is exclusively authorized and appointed from time to time in its sole discretion (i) after the liquidation of the Seller, to take all action actions necessary or appropriate in connection with implementation the defense and/or settlement of any claims for which the Agreement on behalf of StockholdersSeller may be required to indemnify the Buyer pursuant to this Agreement, waive any condition (ii) to or obligation to consummate the transactions, give and receive all notices required to be given by or to the Stockholder Representative under this Agreement and (iii) to take any and all action additional actions as are contemplated to be or may be taken by or on behalf of Stockholders the Stockholder Representative under or with respect to this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(bd) In With respect to the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change authority of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree thatRepresentative:
(i) Purchaser may The Buyer shall be able to rely conclusively on the written instructions and decisions of the Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements matters set forth in paragraph (c) above, and no party shall have any cause of action against Purchaser the Buyer for any action taken by Purchaser the Buyer in reliance upon actions, the written instructions or decisions or instructions of the Stockholder Representative.;
(ii) all actions, decisions, decisions and instructions of the Stockholder Representative hereunder, including without limitation with respect to the defense or settlement of any claims for which the Seller may be required to indemnify the Buyer pursuant to this Agreement, shall be conclusive and binding on Stockholders; upon all of the ▇▇▇▇▇▇▇ Stockholders and no ▇▇▇▇▇▇▇ Stockholder shall have a the right to object, dissent, protest or otherwise contest the same, nor any cause of action against Purchaser or Surviving Corporation the Stockholder Representative for any action taken or omittedtaken, decision made or omitted or any instruction as given or omitted by the Stockholder Representative hereunder.under the authority granted hereby, absent fraud or willful breach of this Agreement by the Stockholder Representative;
(iii) the provisions of this Section 8.15 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any ▇▇▇▇▇▇▇ Stockholder may have in connection with the transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 8.15 are inadequate; therefore, the Buyer, and the Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to temporary and permanent injunctive relief, relief without the necessity of proving damages in if any of them brings an action to enforce any of the provisions of this SectionSection 8.15; and
(v) the provisions of this Section 8.15 shall be binding upon the executors, heirs, legal representatives, successors, and assigns of each ▇▇▇▇▇▇▇ Stockholder, and any references in this Agreement to a ▇▇▇▇▇▇▇ Stockholder or the ▇▇▇▇▇▇▇ Stockholders shall mean and include the successors to the ▇▇▇▇▇▇▇ Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, merger or other operation of law, or otherwise.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by the Stockholder Representative in his capacity as such shall be paid by the ▇▇▇▇▇▇▇ Stockholders pro rata in proportion to their percentage interest holdings of shares of SH Capital Stock on the date hereof; provided -------- that the Stockholder Representative may direct that any such amounts be withheld from any payment otherwise due hereunder to or as directed by the Seller and paid to or as directed by it.
(f) The Stockholder Representative shall not be liable to the ▇▇▇▇▇▇▇ Stockholders for the performance of any act or the failure to act under or in Seller immediately before connection with this Agreement, and the Effective Time. The provisions hereof ▇▇▇▇▇▇▇ Stockholders shall survive indemnify and hold harmless the Effective TimeStockholder Representative from any liability in connection with its acting as such, as long as its actions or failure to act did not constitute gross negligence or willful misconduct.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dataware Technologies Inc)
Stockholder Representative. (a) In order to administer efficiently By voting in favor of the implementation adoption of this Agreement, the waiver approval of the principal terms of the Merger, and the consummation of the Merger, executing a Joinder Agreement or Warrant Cancellation Agreement or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, and without any further action of any conditions to of the obligations to consummate the transactions Company Indemnitors or the settlement Company, each Company Indemnitor shall be deemed to have approved the designation of, and hereby designates, Fortis Advisors LLC as the representative, exclusive agent and attorney-in-fact for and on behalf of any dispute and notices under the Company Indemnitors as of the Closing for all purposes in connection with this Agreement or actionsAgreement, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") the Engagement Letter and authorize him the other agreements ancillary hereto, including to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any communications, to authorize satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and all action contemplated compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to be taken by such claims, to bring (or decide not to bring) actions on behalf of the Company Indemnitors, Selling Stockholders, Accredited Stockholders under and Permitted Transferees to specifically enforce the terms of this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity other agreements ancillary hereto or for damages for breaches hereof or thereof, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) permitted by the terms of this Agreement, the Escrow Agreement or the Engagement Letter. Notwithstanding the foregoing, the Stockholder Representative shall have no obligation to act on behalf of the Company Indemnitors, except as expressly provided herein and in the Engagement Letter, and for purposes of clarity, there are no obligations of the Stockholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Stockholder Representative Group hereunder: (collectivelyi) are coupled with an interest and shall be irrevocable and survive the death, "incompetence, bankruptcy or liquidation of any Company Indemnitor and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Indemnitor of the whole or any fraction of his, her or its interest in the Escrow Agreements")Account. The Stockholder Representative may resign at any time upon at least 10 days prior written notice to the Company Indemnitors. Such agency may be changed by the Company Indemnitors from time to time upon not less than 10 days prior written notice to Parent; provided that the Stockholder Representative may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the former holders of a majority of Company Capital Stock. No bond shall be required of the Stockholder Representative. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Indemnitors.
(b) In Certain Company Indemnitors have entered into an engagement agreement (the event “Engagement Letter”) with the Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed to provide direction to the Stockholder Representative for all purposes; howeverin connection with its services under this Agreement, no change the Escrow Agreement and the Engagement Letter (such Company Indemnitors, including their individual representatives, collectively hereinafter referred to as the “Advisory Committee”). Neither the Stockholder Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Committee (collectively, the “Stockholder Representative Group”) shall incur liability of any kind with respect to any action or omission by the Stockholder Representative or the Advisory Committee in connection with their services pursuant to this Agreement, the Engagement Letter, the Escrow Agreement or any other agreements ancillary hereto, except to the extent resulting from the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable. For the avoidance of doubt, the preceding sentence shall be effective until Purchaser not prejudice the Stockholder Representative’s right to indemnification from the members of the Advisory Committee (in their capacity as Company Indemnitors) pursuant to the following sentence. The Company Indemnitors shall, on a several and not joint basis and based on their respective Pro Rata Shares, indemnify, defend and hold harmless the Stockholder Representative Group from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, claims, judgments, amounts paid in settlement and out-of-pocket costs and expenses (including the reasonable out-of-pocket fees and expenses of counsel and experts and their staffs, in connection with seeking recovery from insurers and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Stockholder Representative’s or the Advisory Committee’s execution and performance of this Agreement, the Escrow Agreement, the Engagement Letter and any other agreements ancillary hereto, in each case as such Representative Loss is given notice of it suffered or incurred; provided that in the event that any such Representative Loss is finally adjudicated to have been caused by the Stockholdersbad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable, the Stockholder Representative or such member of the Advisory Committee, as applicable, shall promptly reimburse the Company Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Indemnitors, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund Account and (ii) any other funds that become payable to the Company Indemnitors under this Agreement at such time as such amounts would otherwise be distributable to the Company Indemnitors; provided that while this Section 8.6(b) allows the Stockholder Representative to be paid from the aforementioned source of funds, this does not relieve the Company Indemnitors from their obligation to promptly pay, in accordance with their respective Pro Rata Shares, such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event shall the Stockholder Representative be required to advance its own funds on behalf of the Company Indemnitors 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 Engagement Letter or the transactions contemplated hereby or thereby. Furthermore, the Stockholder Representative shall not be required to take any action unless the Stockholder Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholder Representative against the costs, expenses and liabilities which may be incurred by the Stockholder Representative in performing such actions. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Indemnitors set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The Company Indemnitors acknowledge and agree that the foregoing indemnities and immunities shall survive the resignation or removal of the Stockholder Representative or any member of the Advisory Committee and the Closing or the termination of this Agreement.
(c) By mere execution of this AgreementUpon the Closing, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions Parent shall wire to an account of Stockholder Representative as to any actions required set forth on the Allocation Schedule (the “Expense Fund Account”) an amount of $1,000,000 in cash (the “Expense Fund”), which shall be used (i) for the purposes of paying directly, or permitted to be taken by Stockholders or reimbursing the Stockholder Representative hereunder and under for, any Representative Losses pursuant to this Agreement, the Escrow Agreements Agreement, the Engagement Letter and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions other agreements ancillary hereto or instructions of Stockholder Representative.
(ii) all actionsas otherwise determined by the Advisory Committee. The Company Indemnitors shall not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative is not providing any investment supervision, decisionsrecommendations or advice and shall not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, gross negligence or willful misconduct. The Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and instructions has no tax reporting or income distribution obligations. Subject to Advisory Committee approval, the Stockholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Company Indemnitors. The Stockholder Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative shall be conclusive deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Company Indemnitors the portion of such balance payable pursuant to Section 2.1(a), Section 2.1(b)(i) and binding on StockholdersSection 2.1(c), as applicable; no Stockholder shall have provided that as a cause of action against Purchaser or Surviving Corporation for any action taken or omittedcondition to Parent’s and Paying Agent’s obligation to make such payments, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the portion of such Expense Fund distribution payable to each Company Indemnitor. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Indemnitors at the time of Closing. Any Tax required to be withheld with respect to the deemed payment to fulfill any fiduciary obligation a Company Indemnitor of its portion of the Expense Fund shall reduce the amount of cash to Stockholders so long as no Stockholder is adversely affected by any action such Person at Closing in respect of Company Securities and shall not reduce the Expense Fund or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderamounts paid out of the Expense Fund.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser The Stockholder Representative shall be entitled to: (i) rely upon the Allocation Schedule, (ii) rely upon any signature believed by it to injunctive reliefbe genuine, without and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the necessity applicable Company Indemnitor or other party. A decision, act, consent or instruction of proving damages in the Stockholder Representative under this Agreement, the Escrow Agreement or the Engagement Letter, including an action to enforce this Section.
(e) The provisions amendment of this Agreement pursuant to Section are independent and severable to constitute an irrevocable power of attorney10.7, coupled in accordance with an interest and surviving death, the authority granted by each Stockholder to the Stockholder Representative hereunder shall constitute a decision of the Company Indemnitors and bind executorsshall be final, heirs, successorsbinding and conclusive upon the Company Indemnitors and their successors as if expressly confirmed and ratified in writing by the Company Indemnitors, and legal representatives. All reasonable fees and expenses incurred by all defenses which may be available to any Company Indemnitor to contest, negate or disaffirm the action of the Stockholder Representative shall be paid taken in good faith under this Agreement, the Escrow Agreement or the Engagement Letter are waived. Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Indemnitors. Parent is hereby relieved from any Liability to any Person for any acts done by Stockholders pro rata them in proportion to their percentage interest in Seller immediately before accordance with such decision, act, consent or instruction of the Effective Time. The provisions hereof shall survive the Effective TimeStockholder Representative.
Appears in 1 contract
Sources: Merger Agreement (Twilio Inc)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, The Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇have irrevocably appointed Gre▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fill such vacancy ▇▇ act as the sole and be deemed exclusive representative (the "Stockholder Representative for Representative") to make all purposes; however, no change decisions and determinations on behalf of the Stockholders under this Agreement that the Stockholder Representative shall may deem necessary or appropriate. Without limiting the generality of the immediately preceding sentence, the Stockholder Representative B-7 75 may, in his sole good faith discretion, object to, settle or compromise any Notice of Damages made by Buyer under this Agreement or any dispute with respect to the final Cash Amount, the Adjustment Amount, the Purchase Price Adjustment or the Accounts Receivable Deficiency, and authorize payments to be effective until Purchaser is given notice of it made with respect thereto. All action taken by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder shall be binding upon the Stockholders and under the Escrow Agreements their successors as if expressly confirmed and ratified in writing by each of them, and no party Stockholder shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon the right to object, dissent, protest or otherwise contest the same. All actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; upon all of the Stockholders and no Stockholder shall have a any cause of action against Purchaser or Surviving Corporation the Stockholder Representative for any action taken or omittedtaken, decision made or omitted or any instruction as given or omitted by such Stockholder Representative hereunderunder or with respect to this Agreement or the Merger Agreement, except for gross negligence or willful misconduct by such Stockholder Representative.
(iiib) The Stockholder Representative will be entitled to reimbursement of reasonable costs and expenses (including reasonable attorneys' fees and arbitration costs) incurred by him or her in connection with the performance of his or her services and functions under or relating to this Agreement and/or the Merger Agreement (the "Expenses"). At the Closing, a sum equal to one percent (1%) of the Estimated Purchase Price shall be placed into an interest-bearing escrow account (the "Stockholder Representative Escrow") established by the Stockholder Representative from which the Stockholder Representative shall have the right to withdraw the Expenses, from time to time, in his discretion and without any consent or approval of Buyer or any other party. When all Escrow Funds have been disbursed as provided in this Agreement and the Expenses have been paid, the Stockholder Representative shall disburse any balance remaining in the Stockholder Representative Escrow as additional Purchase Price to the Stockholders, in the manner set forth in Section 8 of this Agreement; provided, however, that if the Stockholder Representative believes, in his discretion, that he may incur additional Expenses subsequent to such time in connection with any potential claims that may be asserted against the Stockholder Representative or otherwise, the Stockholder Representative shall have the right to retain such portion of the remaining balance in the Stockholder Representative Escrow for such period of time as he deems necessary, in his discretion, to cover such Expenses. Upon determination by the Stockholder Representative that no further Expenses will be incurred, the Stockholder Representative shall thereafter disburse any balance remaining in the Stockholder Representative Escrow as provided above.
(c) The Stockholder Representative, or any successor to him hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Stockholder Representative as hereinafter provided. In case of the resignation or the death or inability to act of the Stockholder Representative appointed by the Stockholders, or any of his successors, a successor shall be named by B-8 76 the vote of a majority in interest of the Stockholders. Each such successor Stockholder Representative shall have the power, authority, rights and privileges hereby conferred upon the original Stockholder Representative succeeded by him, and the term "Stockholder Representative" as used herein shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no include a successor Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other StockholderRepresentative.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation execution and delivery of a Joinder Agreement, and the adoption of this AgreementAgreement and approval of the Merger by the Stockholders, each of the waiver Indemnifying Parties shall be deemed to have agreed to appoint Shareholder Representative Services LLC as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take Indemnifying Parties for all action necessary purposes in connection with implementation of this Agreement and the Agreement on behalf of Stockholdersagreements ancillary hereto, waive any condition including without limitation to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications in respect of indemnification claims under this Agreement to be taken -50- recovered against the Escrow Fund, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or on behalf by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of Stockholders under the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated or permitted by the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Stockholder Representative shall not have the authority to enter into any settlement or compromise or otherwise agree to any claims to the extent that such claim involves Excess Loss (the “Authority Limitation”). Such agency may be changed by the Stockholders from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a majority in interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Stockholder Representative or other vacancy in the position of Stockholder Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Stockholders under Fund. No bond shall be required of the Earnout Escrow Agreement and Stockholder Representative. After the Indemnity Escrow Agreement (collectivelyClosing, "Escrow Agreements")notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for while acting in good faith and without gross negligence or willful misconduct. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any and all purposes; howeverlosses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative and any amounts required to be paid by the Stockholder Representative to the Escrow Agent pursuant to the Escrow Agreement (“Stockholder Representative Expenses”). If not paid directly to the Stockholder Representative by the Indemnifying Parties, any such Stockholder Representative Expenses may be recovered by the Stockholder Representative from (i) first, the funds in the Expense Fund and (ii) then, to the extent the funds in the Expense Fund are insufficient, the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Indemnifying Parties. For the avoidance of doubt, while this Section 7.6(b) allows the Stockholder Representative to be paid from the Expense Fund and the Escrow Fund following the Expiration Date and the resolution of all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, this Section 7.6(b) shall not limit the obligation of any Indemnifying Party to promptly pay such Stockholder Representative Expenses as they are incurred. In no change event will the Stockholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative or the termination of this Agreement. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.2 or Section 9.3, shall constitute a decision of the Indemnifying Parties and shall be effective until Purchaser is given notice final, conclusive and binding upon the Indemnifying Parties; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of it the Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the StockholdersStockholder Representative.
(c) By mere execution Upon the Closing, Parent shall wire to a segregated client bank account maintained by the Stockholder Representative, an amount equal to US$250,000 (the “Expense Fund”), and each Indemnifying Party shall be deemed to have contributed his Pro Rata Portion of the Expense Fund. The Stockholder Representative shall hold the Expense Fund in accordance with this Agreement on behalf of the Indemnifying Parties as a fund which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively . The Indemnifying Parties shall not receive any interest or earnings on the instructions Expense Fund and decisions of irrevocably transfer and assign to the Stockholder Representative as to any actions required ownership right that they may otherwise have had in any such interest or permitted to be taken by Stockholders or earnings. The Stockholder Representative hereunder will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or bad faith. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and under will not voluntarily make these funds available to its creditors in the event of bankruptcy. Contemporaneously with or as soon as practicable following the release in full of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actionsFund, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Indemnifying Parties in accordance with their respective Pro Rata Portions. For tax purposes, the Expense Fund will be conclusive treated as having been received and binding on Stockholders; no Stockholder shall have a cause voluntarily set aside by the Indemnifying Parties at the time of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other StockholderClosing.
(d) Remedies at law for breach The Escrow Fund shall be held and disposed of in accordance with the terms and conditions of this Section would be inadequateAgreement and the Escrow Agreement, therefore Purchaser in a form reasonably acceptable to the parties thereto (the “Escrow Agreement”), and shall be entitled to injunctive reliefentered into at the Effective Time, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent by and severable to constitute an irrevocable power of attorneyamong Parent, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorsthe Escrow Agent. The Escrow Fund shall be deemed deducted on a pro rata basis from the consideration each of the Stockholders would otherwise have been entitled to receive as part of the consideration for their shares of Company Capital Stock at the Effective Time pursuant to Section 1.6(b)(i), heirsand, successorssubject to the provisions of this Agreement and the Escrow Agreement. The Escrow Fund shall be held in trust and shall not be subject to any Lien, attachment, trustee process or any other judicial process of any creditor of any party. Approval of this Agreement and the Merger by the Stockholders shall constitute approval of the Escrow Agreement and of all of the arrangements relating thereto, including without limitation the placement of the Escrow Fund in escrow, and legal representatives. All reasonable fees and expenses incurred by the approval of the appointment of the Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By voting in favor of the implementation adoption of this Agreement, the waiver approval of any conditions the Merger, the execution of the Stockholder Consent, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary consideration payable in connection with implementation the Merger, each Seller Indemnifying Party shall be deemed to have approved the designation of, and hereby designates, Fortis Advisors LLC, a Delaware limited liability company as the initial Stockholder Representative. The Stockholder Representative is hereby appointed as of the Agreement date hereof as the agent and attorney in fact of the Seller Indemnifying Parties as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Seller Indemnifying Parties to or obligation to consummate the transactions, give and receive notices and take any communications in connection with this Agreement and all action contemplated to be taken by or on behalf of Stockholders related matters, including in connection with claims for indemnification under this AgreementArticle VII and to agree to, negotiate, and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to, such claims, and to take all other actions that are either (i) necessary or appropriate in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative shall be effective until Purchaser is given notice for the accomplishment of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required foregoing or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisionsspecifically mandated by the terms of this Agreement (including any amendment or modification to the Spreadsheet). The Stockholder Representative may resign at any time, and instructions such agency may be changed by the Seller Indemnifying Parties from time to time upon not less than ten (10) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless a majority of the Seller Indemnifying Parties (as determined by their respective Interim Excess Indemnity Pro Rata Shares, if such determination is made prior to the determination of the Earn-Out Payment, or Final Excess Indemnity Pro Rata Shares, if such determination is made subsequently) agree in writing to such removal and to the identity of the substituted agent. A vacancy in the position of the Stockholder Representative may be filled by a majority of the Seller Indemnifying Parties (as determined by the applicable Indemnity Pro Rata Shares as set forth in the preceding sentence). No bond shall be conclusive and binding on Stockholders; no required of the Stockholder shall have a cause of action against Purchaser or Surviving Corporation for Representative, at any action taken or omittedtime, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) all references herein to the Stockholder Representative shall be deemed to fulfill any fiduciary obligation refer to Stockholders so long the holders of a majority of the Seller Indemnifying Parties (as no Stockholder is adversely affected determined by any action the applicable Indemnity Pro Rata Shares as set forth in the preceding sentence). Notices or failure communications to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to or from the Stockholder Representative and bind executors, heirs, successors, and legal representativesshall constitute notice to or from the Seller Indemnifying Parties. All reasonable fees and expenses incurred by The Stockholder Representative shall be paid by forward any information it receives regarding accredited investor status of the Company Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeParent.
Appears in 1 contract
Sources: Merger Agreement (Cafepress Inc.)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this AgreementAgreement by the holders of H.S. Trask Common Shares, the waiver Stockholder Representative shall be constituted and appointed as agent and attorney-in-fact for and on behalf of any conditions each of the Former H.S. Trask Stockholders. The Stockholder Representative shall have full power and authority to represent all of the obligations Former H.S. Trask Stockholders and their successors with respect to consummate the transactions or the settlement of any dispute and notices all matters arising under this Agreement or actionsand all actions taken by the Stockholder Representative hereunder and thereunder shall be binding upon all Former H.S. Trask Stockholders and their successors as if expressly confirmed and ratified in writing by each of them, settlement or notices under including, but not limited to, resolving all claims relating the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Fund and any indemnification claims and obligations. The Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and Representative shall take any and all action contemplated to be taken by actions which he believes are necessary or appropriate under this Agreement for and on behalf of Stockholders the Former H.S. Trask Stockholders, as fully as if she were acting on her own behalf, including, without limitation, consenting to, compromising or settling issues with respect to the Escrow Fund and all such indemnity claims with Parent under this Agreement, taking any and all other actions specified in or contemplated by this Agreement, and engaging counsel, or accountants in connection with the foregoing matters. Without limiting the generality of Escrow Stockholders under the Earnout Escrow foregoing, the Stockholder Representative shall have full power and authority to interpret all the terms and provisions of this Agreement and to consent to any amendment hereof on behalf of all Former H.S. Trask Stockholders and such successors. The Person designated to serve as the Indemnity Stockholder Representative may be changed by the Former H.S. Trask Stockholders who are entitled to receive a majority of the Escrow Agreement Fund when and if it becomes payable hereunder from time to time upon not less than ten (collectively10) days prior written notice to Parent. No bond shall be required of the Stockholder Representative, "and the Stockholder Representative shall receive no compensation for services but shall be entitled to be reimbursed by the Former H.S. Trask Stockholders for reasonable expenses incurred in the performance of her duties hereunder, including expenses of legal counsel. All such expenses shall be payable from the Escrow Agreements")Fund, if sufficient, and shall be payable in Parent Shares valued in accordance with the Claims valuation.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable to H.S. Trask Stockholders for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith and in the exercise of reasonable judgment, no change and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. The Former H.S. Trask Stockholders shall severally indemnify the Stockholder Representative and hold her harmless from and against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it by or in connection with the Stockholdersacceptance and administration of her duties hereunder.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the The Stockholder Representative shall be conclusive treat confidentially and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser not disclose any nonpublic information from or about Parent or the Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunderto anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order The Stockholder Representative will be designated by Regence Blue Shield and shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇▇. The Stockholder Representative is hereby designated to administer efficiently serve as the implementation representative of each Company Escrow Party with respect to the matters set forth in this Agreement and the Related Agreements to be performed by the Stockholder Representative. Each Company Escrow Party hereby irrevocably appoints the Stockholder Representative as agent and attorney-in-fact for each such Company Escrow Party, for and on behalf of each such Company Escrow Party, with full power and authority to represent each Company Escrow Party and such Company Escrow Party’s successors and assigns with respect to all matters arising under this Agreement and all actions taken by the Stockholder Representative under this Agreement will be binding upon each such Company Escrow Party and such Company Escrow Party’s successors and assigns as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the foregoing, the Stockholder Representative has full power and authority, on behalf of each Company Escrow Party and such Company Escrow Party’s successors and assigns, to interpret the terms and provisions of this Agreement, the waiver of to dispute or fail to dispute any conditions claim for indemnification under this Agreement, to the obligations to consummate the transactions or the settlement of negotiate and compromise any dispute and notices that may arise under this Agreement and to sign any releases or actionsother documents with respect to any such dispute. A Company Escrow Party will be deemed a party or a signatory to any agreement, settlement document, instrument or notices under certificate for which the Earnout Stockholder Representative signs on behalf of such Company Escrow Agreement Party.
(b) Neither the Stockholder Representative nor any agent employed by it shall incur any liability to any Company Escrow Party relating to the performance of its duties hereunder or Indemnity Escrow Agreementany of its omissions or actions with respect thereto.
(c) Subject to applicable law and professional standards of conduct, Stockholders Parent, Merger Sub, Company and the Surviving Company each hereby appoint consent to allow the Stockholder Representative, as the representative of the Company Stockholders, to use ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative Street LLP ("Stockholder Representative"the “Firm”) and authorize him to take all action necessary in connection with implementation of any dispute arising out of, or interpretation of, this Agreement or any other document or agreement contemplated herein. Parent, Merger Sub, Company and the Agreement on behalf of Surviving Company recognize that the Firm has been providing advice to the Stockholder Representative, Company, the Company Stockholders, waive any condition to or obligation to consummate and their directors, officers, shareholders, accounting firm, and/or employees, and Parent, Merger Sub, Company and the transactionsSurviving Company agree that all pre-Closing communications between the Company and the Firm made in connection with the negotiation, give preparation, execution, delivery and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders Closing under this Agreement, shall continue after the Closing and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall purposes be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to privileged communications between the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timesuch counsel.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Livongo Health, Inc.)
Stockholder Representative. (a) In order to administer efficiently By the implementation execution and delivery of this Agreement, the waiver Stockholders hereby irrevocably constitute and appoint Russ▇▇▇ ▇▇▇▇▇ ▇▇▇ as the true and lawful agent and attorney-in-fact of any conditions the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the obligations escrow arrangements contemplated by this Agreement, and to consummate act on behalf of the Stockholders in any dispute, claim, litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Stockholder Representative shall deem necessary or appropriate in connection with the transactions or the settlement of any dispute and notices under contemplated by this Agreement and Russ▇▇▇ ▇▇▇▇▇ ▇▇▇ hereby accepts appointment as Stockholder Representative. If Russ▇▇▇ ▇▇▇▇▇ ▇▇▇ dies or actionsotherwise becomes incapacitated and unable to serve as Stockholder Representative, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint Robe▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ll serve as their representative ("the new Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change The appointment of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving deathshall be irrevocable, granted and Parent, the Escrow Agent, and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholder Representative in all matters referred to herein. All payments and notices made or delivered by each Stockholder Escrow Agent or Parent to the Stockholder Representative for the benefit of the Stockholders shall discharge in full all liabilities and bind executors, heirs, successors, and legal representativesobligations of Escrow Agent or Parent to the Stockholders with respect thereto. All reasonable fees and expenses incurred by The Stockholders hereby confirm all that the Stockholder Representative shall do or cause to be paid done by Stockholders pro rata in proportion to their percentage interest in Seller immediately before virtue of his appointment as the Effective Time. The provisions hereof shall survive Stockholder Representative of the Effective TimeStockholders.
Appears in 1 contract
Sources: Escrow Agreement (Illinois Superconductor Corporation)
Stockholder Representative. (a) In order Each Majority Stockholder hereby designates Patriarch Partners Agency Services, LLC (the “Stockholder Representative”) to administer efficiently represent the implementation interests of and take action for and on behalf of such Majority Stockholder individually and the Majority Stockholders collectively in giving consents and approvals hereunder and making those determinations hereunder that are specifically reserved to the Stockholder Representative by the terms hereof, consummating or causing to be consummated the transactions contemplated by this Agreement, the executing and delivering on behalf of each Majority Stockholder any amendment or waiver of under this Agreement, and doing each and every act and exercising any conditions and all other rights which such Majority Stockholder or Majority Stockholders are permitted or required to the obligations to consummate the transactions do or the settlement of any dispute and notices exercise under this Agreement and the other agreements, documents and certificates executive and performed in connection herewith. The Stockholder Representative hereby agrees to act upon the express conditions contained herein. If the Person serving as the Stockholder Representative ceases to serve in the capacity of the Stockholder Representative, for any reason, the Majority Stockholders collectively shall promptly (and in any event within ten (10) business days) appoint a successor Stockholder Representative and shall promptly (and in any event within two (2) business days thereof) provide written notice of such appointment to the Buyer. The Stockholder Representative may resign at any time upon written notice delivered to the Majority Stockholders and the Buyer or actionsassign any and all of its rights and obligations hereunder as Stockholder Representative to any of its Affiliates upon written notice delivered to the Majority Stockholders and the Buyer, settlement and the Stockholder Representative may be removed at any time by the Majority Stockholders holding a majority of the Company Shares held by such Majority Stockholders at such time (or notices under immediately prior to the Earnout Escrow Agreement Closing if such time is after the Closing) upon written notice delivered to the Stockholder Representative and the Buyer, and the concurrent appointment of a successor Stockholder Representative by such holders. The Stockholder Representative may execute any of its duties hereunder by or Indemnity Escrow Agreementthrough third parties, agents, employees or attorneys in fact without the consent of the Majority Stockholders and shall be entitled to advice of counsel concerning all matters pertaining to such duties.
(b) Each of the Majority Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all agrees that any action necessary in connection with implementation of the Agreement taken on behalf of Stockholders, waive any condition the Majority Stockholders to or obligation to consummate enforce the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf rights of the Majority Stockholders under this Agreement, and any action taken with respect to any indemnification claim pursuant to Article IX (including any action taken to object to, defend, compromise or agree to the payment of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectivelysuch claim), "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it if approved in writing by the StockholdersStockholder Representative, and that each and every such action so taken shall be binding and conclusive on every Majority Stockholder, whether or not such Majority Stockholder had notice of, or approved, such action.
(c) By mere execution of Notwithstanding anything in this AgreementSection 2.12 to the contrary, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on agrees with each of the Management Stockholders that it will not, without the written consent of Management Stockholders holding at least a majority of the aggregate Participation Percentages of the Management Stockholders collectively, approve any amendment or waiver under this Agreement as such amendment or waiver applies to any such Management Stockholders; no Stockholder shall have a cause of action against Purchaser provided, however, that any such amendment or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted waiver duly consented to by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed the Management Stockholders pursuant to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected the terms hereof and approved by any action or failure to act by the Stockholder Representative in a disproportionate measure compared to any other accordance herewith shall be binding and conclusive on every such Management Stockholder, whether or not such Management Stockholder had notice of, or approved, such amendment or waiver.
(d) Remedies at law for breach A decision, act, consent or instruction of this Section would the Stockholder Representative in accordance herewith shall constitute a decision of each and all of the Majority Stockholders, and shall be inadequatefinal, therefore Purchaser binding and conclusive upon each of the Majority Stockholders. The Buyer and the Company shall be entitled to injunctive reliefrely upon any decision, without act, consent or instruction of the necessity Stockholder Representative as being the decision, act, consent or instruction of proving damages each and all of the Majority Stockholders. The Buyer and the Company are relieved from any Liability to any person for any acts done by them in an action accordance with such decision, act, consent or instruction of the Stockholder Representative made in accordance herewith. Although the Stockholder Representative shall not be obligated to enforce this Sectionobtain instructions from the Majority Stockholders prior to any decision, act, consent or instruction except as specifically set forth herein, if, and to the extent that, the Stockholder Representative receives any written instructions from the Majority Stockholders collectively holding a majority of the aggregate Participation Percentages of all the Majority Stockholders, the Stockholder Representative shall comply with such instructions.
(e) The provisions Stockholder Representative may, in all questions arising under or related to this Agreement, rely upon any communication, instrument or document reasonably believed by it to be genuine and correct and to have been signed or sent by the proper Persons and may rely on the advice of this Section are independent counsel or any other advisor, and severable shall not be liable to constitute the Majority Stockholders or any other Person for any action taken or not taken, or any decision made or not made, by the Stockholder Representative in its capacity as the Stockholder Representative, in the absence of such Stockholder Representative’s willful misconduct, fraud or gross negligence. In performing its functions and duties hereunder, the Stockholder Representative shall act solely as an irrevocable power agent of attorney, coupled the Majority Stockholders and does not assume any obligation or relationship of agency or trust with an interest and surviving death, granted by each the Buyer. Each Majority Stockholder severally agrees to indemnify the Stockholder Representative and bind executorsits Affiliates for and against any and all liabilities, heirsobligations, successorslosses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature which may be asserted against the Stockholder Representative or its Affiliates in exercising its powers, rights and legal representativesremedies or performing its duties as the Stockholder Representative hereunder. All The Majority Stockholders shall pay (or reimburse the Stockholder Representative for), on a pro rata basis in accordance with their respective Participation Percentage, the reasonable fees and expenses incurred of any counsel or other advisors retained by the Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before connection with the Effective Time. The provisions hereof shall survive performance of the Effective TimeStockholder Representative’s duties hereunder.
Appears in 1 contract
Sources: Merger Agreement (Pc Mall Inc)
Stockholder Representative. (a) In order By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders or by receiving the benefits thereof, including any consideration payable hereunder, each of the Stockholders shall be deemed to administer efficiently have agreed to appoint Shareholder Representative Services LLC, as of the implementation Closing, as its representative, agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Stockholders to take all actions in connection with Agreement that are to be taken by the Stockholder Representative, including to amend this Agreement, to waive any provision of this Agreement, the waiver of any conditions to the obligations negotiate payments due pursuant to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsArticle XI, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Parent Indemnified Party from the Escrow Fund in satisfaction of claims by any Parent Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Parent Indemnified Party against any Stockholders or by any such Stockholders against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any such Stockholders, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. The Stockholder Representative may resign at any time, and such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of at least a two-thirds interest of the Escrow Stockholders under Fund agree to such removal and to the Earnout identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Agreement and Fund. In the Indemnity Escrow Agreement event a vacancy in the position of Stockholder Representative exists for fifteen (collectively15) or more days, "Escrow Agreements")Parent shall have the right to petition a court of competent jurisdiction to appoint a replacement Stockholder Representative. No bond shall be required of the Stockholder Representative. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative diesrepresents and warrants to Parent that, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change as of the Stockholder Representative shall be effective until Purchaser is given notice Closing, it has the limited liability company power and authority to enter into and perform this Agreement (subject to the laws of it by the Stockholdersagency).
(c) By mere execution Until notified in writing by the Stockholder Representative that it has resigned, or that it has been removed by at least two-thirds in interest of this Agreementthe Escrow Fund, Parent may rely conclusively and act upon the joint directions, instructions and notices of the Stockholder Representative named above.
(d) The Company, the Escrow Participants and the Stockholders agree thateach hereby authorize the Stockholder Representative to:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required Receive all notices or permitted documents given or to be taken by Stockholders or Stockholder Representative hereunder and under given to the Escrow Agreements Participants or the Stockholders pursuant hereto or in connection herewith or therewith and no party shall have to receive and accept services of legal process in connection with any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions suit or instructions of Stockholder Representative.proceeding arising under this Agreement;
(ii) all actions, decisionsEngage counsel, and instructions of such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Stockholder Representative shall be conclusive and binding on Stockholdersmay in its sole discretion deem appropriate; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.and
(iii) Take such action as the Stockholder Representative shall be deemed to fulfill may in its sole discretion deem appropriate in respect of: (A) waiving any fiduciary obligation to Stockholders so long inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as no Stockholder is adversely affected by any action or failure to act by the Stockholder Representative are authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in a disproportionate measure compared their capacity as Stockholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any other Stockholder.
(d) Remedies at law of the transactions contemplated by this Agreement, including the defense and/or settlement of any claims for breach which indemnification is sought pursuant to this Article XI and any waiver of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without any obligation of Parent or the necessity of proving damages in an action to enforce this SectionSurviving Corporation.
(e) The Stockholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders shall indemnify the Stockholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholder 65 Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while the Stockholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions of limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Section Agreement are independent and severable not intended to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder be applicable to the indemnities provided to the Stockholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders and bind executorsshall be final, heirsbinding and conclusive upon the Stockholders; and Parent may rely upon any such decision, successorsact, and legal representativesconsent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. All reasonable fees and Parent is hereby relieved from any liability to any person for any decision, act, consent or instruction of the Stockholder Representative.
(f) Upon the Closing, the Company will wire $250,000 (the “Expense Fund”) to the Stockholder Representative, which will be used for any expenses incurred by the Stockholder Representative. The Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative shall be paid by Stockholders pro rata any ownership right that they may otherwise have had in proportion to their percentage any such interest in Seller immediately before the Effective Timeor earnings. The provisions hereof shall survive Stockholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the Effective Timeevent of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Stockholders. For U.S Federal income Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement (Yext, Inc.)
Stockholder Representative. (a) In order to administer efficiently the implementation By virtue of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation approval of the Agreement Merger, each Securityholder designates and appoints the Stockholder Representative as such Securityholder’s agent and attorney-in-fact with full power and authority to act for and on behalf of Stockholders, waive any condition each Securityholder to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications, to be taken by or accept service of process on behalf of Stockholders the Securityholders pursuant to Section 9.4(f) and Section 11.11, to authorize and agree to adjustments to the Notes under Section 2.7 and other applicable provisions of this Agreement, to agree to, negotiate, enter into settlements and compromises of, and comply with Judgments of courts or other Governmental Authorities and awards of arbitrators, with respect to, any claims by any Purchaser Indemnified Party against any Stockholder or by any Stockholder against any Purchaser Indemnified Party, or any other dispute between any Purchaser Indemnified Party and any Securityholder, in each case relating to this Agreement or the transactions contemplated by this Agreement and to take all actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Notices or communications to or from the Stockholder Representative constitute notice to or from each of the Securityholders for all purposes under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) The Stockholder Representative may, in his sole and absolute discretion, delegate its authority as Stockholder Representative to any one of the Stockholders or to a third-party entity that is generally in the business of providing stockholder representative services in connection with mergers and acquisitions for a fixed or indeterminate period of time upon not fewer than 10 Business Days’ prior written notice to the Purchaser in accordance with Section 11.2. In the event Stockholder Representative dies, becomes legally incapacitated of the death or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change incapacity of the Stockholder Representative, a successor Stockholder Representative shall will be effective until Purchaser is given notice of it elected promptly by the StockholdersStockholders whose interests aggregate not less than a majority of the aggregate consideration set forth on the Final Merger Consideration Allocation Schedule and the Securityholders will so notify the Purchaser. Each successor Stockholder Representative has all of the power, authority, rights and privileges conferred by this Agreement upon the original Stockholder Representative, and the term “Stockholder Representative” as used in this Agreement includes any successor Stockholder Representative.
(c) By mere execution A decision, act, consent or instruction of this Agreementthe Stockholder Representative constitutes a decision of all the Securityholders and is final, Stockholders agree that:
(i) binding and conclusive upon the Securityholders, and the Purchaser and any Indemnified Party may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of the Securityholders. The Purchaser is hereby relieved from any Liability to any actions required Person for any acts done or permitted omissions by the Purchaser in accordance with such decision, act, consent or instruction of the Stockholder Representative. Without limiting the generality of the foregoing, the Purchaser is entitled to be taken rely, without inquiry, upon any document delivered by Stockholders or the Stockholder Representative hereunder as being genuine and under correct and having been duly signed or sent by the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iid) all actions, decisions, and instructions of The Stockholder Representative will have no Liability to any Person for any act done or omitted under this Agreement as the Stockholder Representative shall while acting in good faith and not in a manner constituting gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel will be conclusive evidence of such good faith. The Securityholders will severally indemnify and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by hold harmless the Stockholder Representative hereunder.
(iii) from and against any Losses the Stockholder Representative shall be deemed to fulfill may suffer as a result of any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any such action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Sectionomission.
(e) The provisions Stockholder Representative will receive no compensation for services as the Stockholder Representative. The Securityholders will reimburse, on a pro rata basis in proportion to their interest in the aggregate consideration set forth on the Final Merger Consideration Allocation Schedule, the Stockholder Representative for professional fees and expenses of this Section are independent and severable to constitute an irrevocable power of any attorney, coupled accountant or other advisors retained by the Stockholder Representative and other reasonable out-of-pocket expenses incurred by the Stockholder Representative in connection with an interest the performance of the Stockholder Representative’s duties under this Agreement. The Stockholder Representative Fund, as established pursuant to Section 1.2(c)(ii), shall by used by the Stockholder Representative solely for the payment of expenses incurred by the Stockholder Representative in connection with the performance of the Stockholder Representative’s duties and surviving death, granted by each obligations hereunder. The Stockholder Representative Fund shall be available to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by in addition to any amounts permitted to be paid to the Stockholder Representative pursuant to this Section 11.1. Notwithstanding anything to the contrary herein, in no event shall (i) any Indemnified Party have any rights in or to the Stockholder Representative Fund or (ii) the Purchaser have any obligation or incur any expense with respect to the Stockholder Fund, except as set forth in Section 1.2(c)(ii). The Purchaser shall not have any responsibility or liability for the manner in which the Stockholder Representative uses the amount reserved for the Stockholder Representative Fund. The Stockholder Representative Fund shall be paid by Stockholders pro rata in proportion distributed pursuant to their percentage interest in Seller immediately before the Effective Timeterms of the Escrow Agreement. The provisions hereof Purchaser shall survive have no obligation with respect to the Effective Timedistribution of any remaining Stockholder Representative Fund.
(f) This appointment and grant of power and authority by the Securityholders to the Stockholder Representative pursuant to this Section 11.1 is coupled with an interest, is in consideration of the mutual covenants made in this Agreement, is irrevocable and may not be terminated by the act of any Stockholder or by operation of Law, whether upon the death or incapacity of any Stockholder, or by the occurrence of any other event.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Each undersigned Stockholder hereby irrevocably authorizes and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇appoints Rake▇▇ ▇▇▇▇▇▇ as their representative (▇▇e "Stockholder Representative"), with full power of substitution and resubstitution, as his, her or its representative and true and lawful attorney-in-fact and agent to act in his, her or its name, place and stead and to execute in the name and on behalf of such Stockholder the Escrow Agreement, dated as of the date hereof, between Amaz▇▇.▇▇▇, ▇▇e Stockholder Representative and ChaseMellon Shareholder Services L.L.C. (the "Escrow Agreement") and authorize him any other agreement, certificate, instrument or document to take all action necessary be delivered by the Stockholders in connection with implementation the Escrow Agreement.
(b) Each of the Agreement on behalf of Stockholdersundersigned Stockholders agrees that the Stockholder Representative shall have the full power, waive any condition authority and right to or obligation to consummate the transactionsperform, give and receive notices do and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement actions and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change making of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and any decisions of Stockholder Representative as to any actions that are required or permitted to be taken by Stockholders or Stockholder Representative hereunder and him under the Escrow Agreements Agreement all without liability to such Stockholder (except as expressly stated herein or therein), so long as the same are carried out by the Stockholder Representative in good faith and no party shall have the Stockholders are treated, in all material respects, in the same manner (taking into account their relative pro rata interests). Such actions include the power to amend, modify or waive any cause provision of action against Purchaser for action taken the Escrow Agreement in the name of each Stockholder as if such Stockholder had himself, herself or itself amended, modified or waived such provision of the Escrow Agreement. In particular, but not by Purchaser in reliance upon actionsway of limitation, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive have the power to make decisions, carry out decisions and binding settle claims under the Escrow Agreement on Stockholders; no behalf of each Stockholder shall have a cause and to sign documents and make filings on behalf of action against Purchaser each Stockholder in connection therewith as if such Stockholder had himself, herself or Surviving Corporation for any action taken itself signed or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunderfiled such document.
(iiic) Each Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder understands that this appointment is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderirrevocable.
(d) Remedies at law for breach Each Stockholder agrees to pay a pro rata portion of the reasonable costs and expenses of such Stockholder Representative in connection with this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this SectionAgreement.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorneyStockholder Representative may resign at any time. Upon such resignation, coupled with an interest and surviving death, granted by each Stockholder to hereby authorizes the Stockholder Representative to appoint a new Stockholder Representative to replace such resigning Stockholder Representative with the same powers and bind executorsduties as such resigning Stockholder Representative; provided, heirshowever, successors, and legal representatives. All reasonable fees and expenses incurred by that such newly appointed Stockholder Representative shall have been a member of the Board of Directors of Junglee immediately prior to the Closing Date and, if the Survival Period (as defined in the Escrow Agreement) has not yet expired, the Escrow Agent shall be paid notified of such appointment forthwith.
(f) If the Stockholder Representative or any successor shall die, or become unable to act as the Stockholder Representative, a replacement shall promptly be appointed by a writing signed by the Stockholders pro rata who initially received a majority of the Merger Consideration; provided, however, that such newly appointed Stockholder Representative shall have been a member of the Board of Directors of Junglee immediately prior to the Closing Date and, if the Survival Period has not yet expired, the Escrow Agent shall be notified of such appointment forthwith.
(g) Unless and until Amaz▇▇.▇▇▇, ▇▇d if the Survival Period has not yet expired, the Escrow Agent, shall have received written notice of the appointment of a successor Stockholder Representative for the Stockholders, Amaz▇▇.▇▇▇ ▇▇▇ the Escrow Agent shall be entitled to rely on, and shall be fully protected in proportion relying on, the power and authority of the Stockholder Representative to their percentage interest in Seller immediately before act on behalf of the Effective Time. The provisions hereof shall survive the Effective TimeStockholders.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Jurvetson Fund IX, L.P., a Cayman Islands exempted limited partnership, shall serve as their representative ("the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and take any communications, obtaining reimbursement as provided for herein for all out-of-pocket fees and all action contemplated to be taken expenses and other obligations of or incurred by or on behalf of Stockholders under the Stockholder Representative in connection with this Agreement, to authorize payment to any indemnified party under Article VIII from the Escrow Funds in satisfaction of claims by any indemnified party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any indemnified party against any Stockholder or by any such Stockholder against any indemnified party or any dispute between any indemnified party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Stockholders under Funds agree to such removal and to the Earnout identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Agreement Funds. No bond shall be required of the Stockholder Representative, and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement or any of the transactions contemplated hereby or thereby as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). The Stockholder Representative Expenses, including the costs and expenses of enforcing this right of indemnification, shall be paid by the Stockholders allocated on the basis of their Pro Rata Portion. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders and shall be final, binding and conclusive upon the Stockholders; and Parent, and the Escrow Agent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. Parent and the Escrow Agent are hereby relieved from any liability to any Person for any decision, act, consent or instruction of the Stockholder Representative.
(c) The Stockholder Representative may, in all questions arising under this Agreement, rely on the advice of counsel. In no event shall the Stockholder Representative be liable hereunder or in connection herewith for any indirect, punitive, exemplary, special, incidental or consequential damages.
(d) The Stockholder Representative shall have reasonable access to information reasonably requested by the Stockholder Representative and the reasonable assistance of the Surviving Company’s officers and employees for purposes of performing the Stockholder Representative duties under this Agreement and exercising its rights under this Agreement.
(e) In the event Stockholder Representative diesperformance of his duties hereunder, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
entitled to (i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative upon any document or instrument reasonably believed to be genuine, accurate as to content and signed by any actions required Stockholder or permitted to be taken by Stockholders or Stockholder Representative any party hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of assume that any Person purporting to give any notice in accordance with the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timehas been duly authorized to do so.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently Upon the implementation adoption of this Agreement, Agreement and the waiver approval of the Merger and the transactions contemplated hereby by the Company Stockholders and without further act of any conditions to Company Stockholder or any holder of Company Stock Options, Carlyle Venture Partners, L.P. (the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him shall be appointed as the Stockholder Representative hereunder to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take communications, to authorize payment to any Parent Indemnified Party from the Escrow Fund in satisfaction of claims and all action contemplated Losses by a Parent Indemnified Party, to be taken by object to such payments, 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 or Losses, to receive payments on behalf of the Company Stockholders and holders of Company Stock Options due and owing pursuant to this Agreement and acknowledge receipt thereof, to waive any breach or default of Parent or Merger Sub under this AgreementAgreement following the Effective Time to calculate the Aggregate Consideration Spreadsheet, to receive service of process on behalf of the Company Stockholders and the holders of Company Stock Options in connection with any claims under this Agreement or any related document or instrument, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Stockholders under Fund agree to such removal and to the Earnout identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Agreement Fund. No bond shall be required of the Stockholder Representative, and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative 60 shall constitute notice to or from the Company Stockholders and holders of Company Stock Options.
(b) In the event The Stockholder Representative diesshall not be liable for any act done or omitted without gross negligence and or bad faith hereunder as Stockholder Representative. Pursuant to the following sentence, becomes legally incapacitated and to the fullest extent permitted by applicable Law, the Company Stockholders and the holders of Company Stock Options shall be, severally based on such Company Stockholder's or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy holder's of Company Stock Options pro rata share of the Aggregate Consideration and be deemed not jointly, obligated to indemnify the Stockholder Representative for all purposes; howeverand hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. At the time of distribution pursuant to Section 9.3(c) to the Company Stockholders and the holders of Company Stock Options of any proceeds remaining in the Escrow Fund, the Stockholder Representative shall be effective until Purchaser is given notice entitled to deduct and withhold from such income and gains included in such distribution to pay and reimburse fees and expenses of it by third parties incurred or expected to be incurred in connection with its role as Stockholder Representative pursuant to this Agreement to the Stockholdersextent that the Stockholder Representative Reserve would be insufficient to pay and reimburse fees and expenses of third parties.
(c) By mere execution The grant of authority provided for in this Agreement, Stockholders agree that:
Section 10.1: (i) Purchaser may rely conclusively is coupled with an interest and is being granted, in part, as an inducement to Parent and Merger Sub to enter into this Agreement and the Escrow Agreement, and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of the Company or any Company Stockholder or holder of a Company Stock Option and shall be binding on any successor thereto and (ii) shall survive the instructions and decisions delivery of an assignment by any Company Stockholder Representative as to or holder of a Company Stock Option of the whole or any actions required fraction of his, her or permitted to be taken by Stockholders or Stockholder Representative its interest in the Escrow Fund.
(d) In connection with the performance of its obligations hereunder and under the Escrow Agreements and no party Agreement, the Stockholder Representative shall have the right at any cause time and from time to time to select and engage, at the cost and expense of action against Purchaser the Company Stockholders and holders of Company Stock Options (as contemplated by Section 10.1(b), attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, and maintain such records, as the Stockholder Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing its services hereunder.
(e) In dealing with this Agreement, the Escrow Agreement and any instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representative hereunder or thereunder, (i) the Stockholder Representative and its agents, counsel, accountants and other representatives shall not assume any, and shall incur no, responsibility whatsoever (in each case, to the extent permitted by applicable Law) to the Company Stockholders and holders of Company Stock Options, Parent or the Surviving Corporation by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement, the Escrow Agreement or any such other agreement, instrument or document other than with respect to willful misconduct 61 or gross negligence on the part of the Stockholder Representative, and (ii) the Stockholder Representative shall be entitled to rely in good faith on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representative pursuant to such advice shall in no event subject the Stockholder Representative to liability to the Company Stockholders and holders of Company Stock Options, Parent or the Surviving Corporation.
(f) All of the immunities and powers granted to the Stockholder Representative under this Agreement shall survive the Closing and/or any termination of this Agreement and the Escrow Agreement.
(g) A decision, act, consent or instruction of the Stockholder Representative, including an extension or waiver of this Agreement pursuant to Article IV or Section 10.6, as applicable, shall constitute a decision of the Company Stockholders and holders of Company Stock Options and shall be final, binding and conclusive upon the Company Stockholders and holders of Company Stock Options; and the Escrow Agent, Parent and the Surviving Corporation may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Stockholders. The Escrow Agent, Parent and the Surviving Corporation are hereby relieved from any Liability to any Person for action taken any acts done by Purchaser them in reliance upon actionsaccordance with such decision, decisions act, consent or instructions instruction of the Stockholder Representative.
(iih) The Stockholder Representative has all actionsrequisite power, decisionsauthority and legal capacity to execute and deliver this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by the Stockholder Representative in connection with the consummation of the transactions contemplated by this Agreement (together with this Agreement, the "Stockholder Representative Documents"), and instructions to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and each of the Stockholder Representative shall be conclusive Documents, the performance of its respective obligations hereunder and binding thereunder and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all required action on Stockholders; no the part of the Stockholder shall have a cause Representative. This Agreement has been, and each of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by the Stockholder Representative hereunder.
(iii) Stockholder Representative shall Documents will be deemed at or prior to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected the Closing, duly and validly executed and delivered by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors(assuming the due authorization, heirs, successorsexecution and delivery by the other parties hereto and thereto) this Agreement constitutes, and legal representatives. All reasonable fees and expenses incurred by each of the Stockholder Representative shall be paid by Stockholders pro rata Documents when so executed and delivered will constitute, legal, valid and binding obligations of the Stockholder Representative enforceable against it in proportion accordance with their respective terms, subject to their percentage interest applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timea proceeding at law or in equity).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Universal American Financial Corp)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation execution and delivery of a Joinder Agreement, and the adoption of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Agreement and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation approval of the Agreement Merger by the Stockholders, each of the Stockholders shall be deemed to have agreed to appoint Shareholder Representative Services LLC as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications in respect of indemnification claims under this Agreement to be taken recovered against the Escrow Fund, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Stockholder or on behalf by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of Stockholders under the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Stockholder Representative or other vacancy in the position of Stockholder Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services other than pursuant to the terms of Escrow Stockholders under that certain Stockholder Representative Agreement, dated on or about the Earnout Escrow Agreement date hereof, entered into by and among the Indemnity Escrow Agreement (collectivelyStockholder Representative, "Escrow Agreements")the Company and certain of the Stockholders. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and without gross negligence. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any and all Losses arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative and any amounts required to be paid by the Stockholder Representative to the Escrow Agent pursuant to the Escrow Agreement (“Stockholder Representative Expenses”), in each case, as such Stockholder Representative Expense is incurred or suffered; provided, that in the event that any such Stockholder Representative diesExpense is finally adjudicated to have arisen from the bad faith, becomes legally incapacitated gross negligence or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change willful misconduct of the Stockholder Representative or any of its members, managers, agents, employees or affiliates, the Stockholder Representative will reimburse the Stockholders the amount of such Stockholder Representative Expense attributable to such bad faith, gross negligence or willful misconduct. The Representative Expense Amount shall be effective until Purchaser is given notice available to reimburse the Stockholder Representative for any Stockholder Representative Expenses. Following the Expiration Date, the resolution of it by all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses not previously recovered from the Representative Escrow Fund from the Escrow Fund prior to any distribution to the Stockholders.
(c, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Stockholder Representative to be paid from the Representative Escrow Fund and Escrow Fund, this Section 7.6(b) By mere execution shall not limit the obligation of any Stockholder to promptly pay such Stockholder Representative Expenses as they are incurred. Following the Expiration Date, the resolution of all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Stockholder Representative shall distribute such portion of the Representative Expense Amount that has not been used to reimburse the Stockholder Representative for Stockholder Representative Expenses, if any, to the Escrow Agent, who will promptly distribute such funds to the Stockholders in accordance with their respective Pro Rata Portions. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.3 or Section 8.4, shall constitute a decision of the Stockholders agree that:
(i) Purchaser and shall be final, conclusive and binding upon the Stockholders; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, Stockholders (including the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders Principal Stockholders) hereby appoint ▇▇▇▇▇ appoints ▇▇▇▇ ▇▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of the Stockholders (and with regard to Claims made against the Principal Stockholders directly, for and on behalf of the Principal Stockholders, waive any condition ) to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of either of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders or the Principal Stockholders, as the case may be, from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, by four (4) of the six (6) Principal Stockholders) agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, by three (3) of the six (6) Principal Stockholders). No bond shall be required of the Stockholder Representative, and of Escrow the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders under (including the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements"Principal Stockholders).
(b) In The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders (including the Principal Stockholders) on whose behalf the Escrow Amount was contributed to the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, only the Principal Stockholders) shall indemnify the Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed hold the Stockholder Representative for all purposes; howeverharmless against any loss, no change liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the StockholdersStockholder Representative.
(c) By mere execution A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.3 and Section 8.4 hereof, shall ----------- ----------- constitute a decision of the Stockholders agree that:
(ior the Principal Stockholders, as the case may be) Purchaser and shall be final, binding and conclusive upon the Stockholders (or the Principal Stockholders, as the case may be); and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders (or the Principal Stockholders, as the case may be). The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Echelon Corp)
Stockholder Representative. (a) In order By virtue of the adoption of this Agreement by the Company Stockholder Approval, and without any further action of any of the holders of Company Capital Stock or the Company, Shareholder Representative Services LLC is hereby irrevocably nominated, constituted and appointed as the exclusive representative, agent and true and lawful attorney in fact of holders of Company Capital Stock (the “Stockholder Representative”), with full power of substitution (and, if substituted, the Stockholder Representative will promptly notify Parent and Buyer of such substitution) to administer efficiently act in the implementation name, place and stead of the holders of Company Capital Stock with respect to this Agreement, as the waiver of any conditions same may be from time to time amended, and with respect to the obligations transactions contemplated hereby, and to consummate do or refrain from doing all such acts and things, and to execute all such documents, as the transactions Stockholder Representative shall deem necessary or the settlement of appropriate in connection with this Agreement, any dispute and notices under agreements contemplated by this Agreement or actionsany of the transactions contemplated hereby or thereby. Without limiting the generality of the foregoing, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders Stockholder Representatives is hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him authorized to take all action necessary actions on behalf of the holders of Company Capital Stock in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to actions taken or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this AgreementSection 2.5, Section 2.6 and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Article VIII.
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy All decisions and be deemed Stockholder Representative for all purposes; however, no change actions of the Stockholder Representative shall be effective until Purchaser is given notice final, binding and conclusive on the holders of it Company Capital Stock and may be relied upon by Parent, Buyer and their Affiliates as the decisions and actions of the holders of Company Capital Stock. The Stockholder Representative shall not be liable to any of the holders of Company Capital Stock for any act done or omitted by the StockholdersStockholder Representative in good faith pursuant to this Agreement or any agreement ancillary hereto or any mistake of fact or Law unless caused by the Stockholder Representative’s willful misconduct in the performance of its duties under this Agreement. The holders of shares of Company Capital Stock will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the holders of shares of Company Capital Stock the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the holders of shares of Company Capital Stock, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Expense Funds, (ii) the amounts in the Indemnity Escrow Funds and Purchase Price Adjustment Escrow Funds at such time as remaining amounts would otherwise be distributable to the holders of shares of Company Capital Stock, and (iii) from any Milestone Payments at such time as any such amounts would otherwise be distributable to the holders of shares of Company Capital Stock; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the holders of shares of Company Capital Stock from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the holders of shares of Company Capital Stock or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the holders of shares of Company Capital Stock set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. In taking any action or refraining from taking any action whatsoever the Stockholder Representative shall be protected in relying upon any notice, paper or other document reasonably believed by it to be genuine, or upon any evidence reasonably deemed by it to be sufficient. The Stockholder Representative may consult with counsel in connection with its duties and shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel.
(c) By mere execution The holders of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively shares of Company Capital Stock will not receive any interest or earnings on the instructions and decisions of Stockholder Representative as Expense Funds and irrevocably transfer and assign to any actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements and no party shall any ownership right that they may otherwise have had in any cause such interest or earnings. The Stockholder Representative will not be liable for any loss of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions principal of the Stockholder Representative shall be conclusive and binding on Stockholders; no Expense Funds other than as a result of its gross negligence or willful misconduct. The Stockholder shall have a cause of action against Purchaser or Surviving Corporation Representative will hold these funds separate from its corporate funds, will not use these funds for any action taken or omitted, decision made or omitted its operating expenses or any instruction as given or omitted by other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. For tax purposes, the Stockholder Representative hereunder.
(iii) Expense Funds will be treated as having been received and voluntarily set aside by the Company’s shareholders at the time of Closing. If there are any Stockholder Representative Expense Funds remaining following the payment by the Stockholder Representative of all costs and expenses that may be reasonably expected to be incurred by the Stockholder Representative, in its capacity as such, in connection the transactions contemplated by this Agreement, at such time the Stockholder Representative shall be deemed deposit (a) with the Paying Agent an amount equal to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by the aggregate Stockholder Representative in a disproportionate measure compared Unused Funds Per Share Payment owed, with respect to any other Stockholder.
all shares of Company Capital Stock, to the former holders of shares of Company Capital Stock and (db) Remedies at law for breach with the Surviving Corporation an amount equal to the aggregate Stockholder Representative Unused Funds Per Share Payment owed, with respect to all Company Options, to the former holders of Company Options. The Paying Agent shall promptly disburse the funds received pursuant to this Section would be inadequate9.12(c) to the former holders of Company Capital Stock and the Company shall promptly disburse, therefore Purchaser shall be entitled through the Company’s payroll (or by check for any holder who is not a current employee of the Company), the funds received pursuant to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder 9.12(c) to the Stockholder Representative and bind executorsformer holders of Company Options, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest each case in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timeaccordance with Article II.
Appears in 1 contract
Sources: Merger Agreement (Teleflex Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) calendar days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed or any change to the agency made unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent or such change. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of two-thirds in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith and in the exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Stockholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Stockholders and shall be effective until Purchaser is given notice of it by final, binding and conclusive upon the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser ; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Taleo Corp)
Stockholder Representative. (a) In order By approving the Merger by written consent, or by execution of a Letter of Transmittal or an Option Holder Letter of Transmittal, each Company Escrow Party, shall have irrevocably authorized and appointed Shareholder Representative Services, LLC, and any replacement representative appointed pursuant to administer efficiently Section 1.10(b) (the implementation “Stockholder Representative”), with full power of substitution and resubstitution, as his, her or its representative and true and lawful attorney-in-fact and agent to act in his, her or its name, place and stead with respect to all matters arising in connection with this Agreement, including the waiver of any conditions to the obligations to consummate the transactions power and authority, in his or the settlement of any dispute and notices under this Agreement or actionsher sole discretion, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative to:
("Stockholder Representative"i) and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders the Company Escrow Party under this Agreement, and of Escrow Stockholders under including pursuant to Article VIII, the Earnout Escrow Agreement or any other Operative Document;
(ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement, including with respect to any Indemnification Claim pursuant to Article VIII, the Indemnity Escrow Agreement or any other Operative Document; and
(collectivelyiii) make, "execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement, including pursuant to Article VIII, the Escrow Agreements")Agreement or any other Operative Document.
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change The appointment of the Stockholder Representative may not be revoked except in accordance with this Section 1.10(b).
(i) The Stockholder Representative may be removed as the Stockholder Representative and replaced with another Person by written agreement among a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative may resign at any time upon giving 30 business days’ prior written notice of such resignation to Parent and each Company Escrow Party. In the event of the Stockholder Representative’s death or Disability, he or she shall automatically be removed as the Stockholder Representative, without any action on the part of Parent or any Company Escrow Party.
(ii) In the event of the Stockholder Representative’s resignation, death or Disability, a majority in interest of the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share shall in good faith promptly agree in writing to a replacement Stockholder Representative. If as a result of the Stockholder Representative’s resignation, death, Disability or removal there is no appointed Stockholder Representative at the time of the expiration of any Survival Period set forth in Section 8.1 or at the expiration of any period in which any Parent Indemnified Party is required to provide notice to the Stockholder Representative with respect to any Indemnification Claim or action to be taken in connection with this Agreement or the Escrow Agreement, such period shall be effective until Purchaser is given notice of it deemed to be extended by the Stockholdersnumber of calendar days that elapses between the expiration of any such period and the appointment of a replacement Stockholder Representative pursuant to the preceding sentence.
(c) By mere execution Notwithstanding the provisions of this Section 1.7, an amount otherwise payable to the Company Escrow Parties equal to the Stockholder Representative Expense Fund will be delivered to the Stockholder Representative. The Stockholder Representative Expense Fund shall be withheld from the Merger Consideration that would otherwise be payable to the Company Escrow Parties according to each Company Escrow Party’s Pro Rata Share. The Stockholder Representative Expense Fund shall be held by the Stockholder Representative in a segregated client bank account and shall be used solely for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to the terms specified herein or in the Escrow Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively . The Company Escrow Parties shall not receive interest or other earnings on the instructions and decisions of Stockholder Representative as Expense Fund and the Company Escrow Parties irrevocably transfer and assign to any actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under any ownership right that they may have in any interest that may accrue on funds held in the Stockholder Representative Expense Fund. The Company Escrow Agreements and no party Parties acknowledge that the Stockholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability for any cause loss of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions principal of the Stockholder Representative shall Expense Fund other than as a result of its gross negligence or willful misconduct. As soon as practicable following the date on which funds remaining in the Escrow Account, if any, are to be conclusive and binding on Stockholders; no Stockholder shall have a cause released to the Company Escrow Parties under the terms of action against Purchaser or Surviving Corporation for any action taken or omittedthe Escrow Agreement, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) the Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by disburse the remaining balance of the Stockholder Representative in a disproportionate measure compared Expense Fund, if any, to any other Stockholderthe Escrow Agent for distribution to the Company Escrow Parties based on each Company Escrow Party’s Pro Rata Share.
(d) Remedies at law for breach The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative’s services pursuant to this Agreement and the Escrow Agreement, except in the event of liability directly resulting from the Stockholder Representative’s gross negligence, willful misconduct or fraud. The Company Escrow Parties shall indemnify, defend and hold harmless the Stockholder Representative and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Stockholder Representative pursuant to the terms of this Section would be inadequateAgreement, therefore Purchaser shall be entitled in each case as such Representative Loss is incurred or suffered; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Escrow Parties the amount of such indemnified Representative Loss attributable to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative and bind executorsby the Company Escrow Parties, heirsany such losses, successors, and legal representatives. All reasonable fees and liabilities or expenses incurred may be recovered by the Stockholder Representative shall from (i) the funds in the Stockholder Representative Expense Fund and (ii) to the extent the Stockholder Representative Expense Fund has been depleted, the amounts of the Escrow Amount otherwise distributable to the Company Escrow Parties pursuant to the terms hereof and the Escrow Agreement at the time of distribution in accordance with written instructions delivered by the Stockholder Representative to the Escrow Agent; provided that while this section allows the Stockholder Representative to be paid by Stockholders pro rata in proportion from the Stockholder Representative Expense Fund and the Escrow Amount, this does not relieve the Company Escrow Parties from their obligation to their percentage interest in Seller immediately before promptly pay such Representative Losses as such Representative Losses are suffered or incurred, nor does it prevent the Effective Time. The provisions hereof shall survive the Effective TimeStockholder Representative from seeking any remedies available to it at law or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Zillow Inc)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have all the rights, responsibilities, powers and privileges of the Stockholder Representative set forth in this Agreement in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under ARTICLE IX or under the Escrow Agreement [***]. In addition, the Company Stockholders (by virtue of the approval of the Merger, the adoption of this Agreement and the execution of the Letter of Transmittal; other than the holders of Dissenting Shares) and the holders of Company Stock Options (by virtue of the execution of the Letter of Transmittal) hereby irrevocably nominate, constitute and appoint ▇▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇as the agent and true and lawful attorney in fact of the Company Securityholder (the “Stockholder Representative”), with full power of substitution, to act in the name, place and stead of the Company Securityholders for purposes of executing any documents and taking any actions that the Stockholder Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under ARTICLE IX or under the Escrow Agreement [***]. ▇▇▇▇▇▇ shall fill such vacancy ▇▇▇▇▇▇▇ hereby accepts its appointment as the Stockholder Representative.
(b) the Company Stockholders (by virtue of the approval of the Merger, the adoption of this Agreement and be deemed the execution of the Letter of Transmittal; other than the holders of Dissenting Shares) and the holders of Company Stock Options (by virtue of the execution of the Letter of Transmittal) grant to the Stockholder Representative full authority to execute, deliver, acknowledge, certify and file with respect to the Indemnity Escrow Fund, [***] or otherwise on behalf of the Company Securityholders (in the name of any or all of the Company Securityholders or otherwise) any and all documents that the Stockholder Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Stockholder Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by this Agreement, the Escrow Agreement and any other contract or document executed in connection with the transactions hereby and shall be obligated to coordinate with the Paying Agent in all matters relating to the distribution of funds to Company Securityholders other than with respect to the amount delivered at the Closing and out *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION of the Indemnity Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, the Escrow Agreement or in any other contract executed in connection with the transactions contemplated hereby, each Parent Indemnitee shall be entitled to deal exclusively with the Stockholder Representative on all matters relating to [***], ARTICLE IX and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed with respect to the Indemnity Escrow Fund, or on behalf of any Company Securityholder by the Stockholder Representative, and on any other action taken or purported to be taken with respect to the Indemnity Escrow Fund or otherwise on behalf of any Company Securityholder by the Stockholder Representative, as fully binding upon such Company Securityholder.
(c) The power of attorney granted in Section 10.13(b): (i) is an agency coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholder Representative; and (iii) shall survive the dissolution, death, incapacity of or other similar event affecting, each of the Company Securityholders.
(d) In dealing with this Agreement and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representative under this Agreement, the Escrow Agreement and any other Contract executed in connection with the transactions contemplated hereby, (i) the Stockholder Representative shall not assume any, and shall incur no, responsibility to the Indemnity Escrow Fund or any Company Securityholder by reason of any error in judgment or other act or failure to act in connection with this Agreement, except for all purposes; howeverany act or failure to act which represents gross negligence, no change of willful misconduct or bad faith, and (ii) the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may entitled to rely conclusively on the instructions and decisions advice of Stockholder Representative as to any actions required counsel, accountants or permitted to be taken by Stockholders other independent experts or Stockholder Representative hereunder and under advisors experienced in the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisionsmatter at issue, and instructions any error in judgment or other act or failure to act on the part of the Stockholder Representative pursuant to such advice shall be conclusive and binding on Stockholders; no not subject the Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted Representative to liability to the Indemnity Escrow Fund or any instruction as given or omitted by Company Securityholder. The Company Securityholders shall jointly and severally indemnify the Stockholder Representative and hold it harmless for, against and from any loss, liability or expense (including attorneys fees reasonably incurred or suffered as a result of the performance of its duties under this Agreement) incurred without gross negligence, willful misconduct or bad faith on its part and arising out of or in connection with the acceptance, exercise or administration of its duties hereunder.
(iiie) If the Stockholder Representative shall resign, die, become disabled or otherwise be unable to fulfill his responsibilities as the Stockholder Representative or the agent of the Company Securityholders, then the Company Securityholders shall, within ten days after such death or disability, appoint a successor as the Stockholder Representative and agent for the Company Securityholders and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Stockholder Representative” for purposes of this Agreement. If for any reason there is no Stockholder Representative at any time, all references herein to the Stockholder Representative shall be deemed to fulfill any fiduciary obligation refer to Stockholders so long as no Stockholder is adversely affected ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(f) All expenses incurred by any action or failure to act by the Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach connection with the performance of this Section would be inadequate, therefore Purchaser its duties as Stockholder Representative shall be entitled to injunctive reliefborne and paid exclusively by the Company Securityholders. All of the indemnities, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent immunities and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, powers *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof under this Agreement shall survive the Effective Timetermination of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Valeant Pharmaceuticals International)
Stockholder Representative. (a) In order The Stockholders agree to administer efficiently the implementation of this Agreementappoint one Stockholder to act as their representative, the waiver of any conditions attorney in fact and proxy with respect to the obligations to consummate the transactions or the settlement of any dispute and notices under certain matters specified in this Agreement or actions, settlement or notices under (the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint "Stockholder Representative"). The parties have designated Charles G. Cooper as the initial St▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ntative. The Stockholder Representative may resign at any time, and a Stockholder Representative may be removed at any time by the vote of Stockholders who collectively own more than 50% of the Registrable Securities at such time ("Majority Holders"). In the event of the death, resignation or removal of the Stockholder Representative") and authorize him , a new Stockholder Representative shall be appointed by a vote of Majority Holders, such appointment to take all action necessary in connection with implementation become effective upon the written acceptance thereof by the new Stockholder Representative. Any failure by the Majority Holders to appoint a new Stockholder Representative upon the death, resignation or removal of the Agreement on behalf Stockholder Representative shall not have the effect of Stockholders, waive releasing the Stockholders from any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders liability under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event The Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill have such vacancy powers and be deemed authority as are necessary to carry out the functions assigned to the Stockholder Representative for all purposesunder this Agreement; provided, however, that the Stockholder Representative will have no change obligation to act on behalf of the Stockholders, except as expressly provided herein. The Stockholder Representative will at all times be entitled to rely on any directions received from the Majority Holders. The Stockholder Representative shall, at the expense of the Stockholders, be entitled to engage such counsel, experts and other agents and consultants as they shall deem necessary in connection with exercising their powers and performing their function hereunder and (in the absence of bad faith on the part of the Stockholder Representative Representative) shall be effective until Purchaser is given notice entitled to conclusively rely on the opinions and advice of it by the Stockholderssuch Persons.
(c) By mere execution The Stockholder Representative shall not be entitled to any fee, commission or other compensation for the performance of its services hereunder, but shall be entitled to the payment of all his or her expenses incurred as the Stockholder Representative. In connection with this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the instructions and decisions of powers conferred upon the Stockholder Representative as hereunder, the Stockholder Representative shall incur no responsibility whatsoever to any actions required Stockholder by reason of any error in judgment or permitted other act or omission performed or omitted hereunder or any such other agreement, instrument or document, excepting only responsibility for any act or failure to be taken by Stockholders act which represents willful misconduct. Each Stockholder shall indemnify, pro rata based upon such holder's percentage interest, the Stockholder Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys', accountants' and other experts' or consultant's fees and the amount of any judgment against the Stockholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholder Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Stockholder Representative hereunder and under for his or her gross negligence or willful misconduct. In the Escrow Agreements and event of any indemnification hereunder, upon written notice from Stockholder Representative to the Stockholders as to the existence of a deficiency toward the payment of any such indemnification amount, each such holder shall promptly deliver to the Stockholder Representative full payment of his or her ratable share of the amount of such deficiency, in accordance with such Stockholder's percentage interest. In no party event shall have the Company be responsible for any cause reimbursement or indemnification of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of the Stockholder Representative.
(iid) all actionsAll of the indemnities, decisions, immunities and instructions of powers granted to the Stockholder Representative under this Agreement shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach survive the termination of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this SectionAgreement.
(e) The provisions of this Section are independent and severable Notwithstanding anything herein to constitute an irrevocable power of attorneythe contrary, coupled with an interest and surviving death, granted by each Stockholder hereby acknowledges that the Company shall not have any responsibility or obligation whatsoever to any such Stockholder or to any other party with respect to or arising out of any actions taken or any inaction by the Stockholder Representative.
(f) The Company shall have the right to rely conclusively upon all actions taken or omitted to be taken by the Stockholder Representative pursuant to this Agreement and bind executorsany instrument, heirsagreement or document relating hereto, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative all of which actions or omissions shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before legally binding upon all the Effective Time. The provisions hereof shall survive the Effective TimeStockholders.
Appears in 1 contract
Sources: Registration Rights Agreement (Comverse Technology Inc/Ny/)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement by the requisite vote of the Preferred Stockholders, each Preferred Stockholder shall be deemed to have agreed to appoint the Stockholder Representative as its agent and attorney-in-fact, for and on behalf of the Preferred Stockholders, as the Stockholder Representative, as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Preferred Stockholders, to take any action and all actions which it believes are necessary or actions, settlement appropriate pursuant to or notices under in connection with this Agreement and the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take communications, to authorize payment to any KIT Indemnified Parties in satisfaction of claims by any such KIT Indemnified Parties, to object to payments from the Escrow Fund, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to such claims, and to take all other actions with respect to such claims that are either (i) necessary or appropriate in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative shall be effective until Purchaser is given notice for the accomplishment of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required foregoing or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actionsspecifically mandated by the terms of this Agreement including engaging counsel and such accountants or other advisors and incur expenses in connection with this Agreement or the Escrow Agreement as the Stockholder Representative may in its sole discretion deem appropriate. Such agency may be changed by Preferred Stockholders who held a majority of the Capital Stock of the Company immediately prior to the Effective Time (calculated on an as-converted to Common Stock basis, decisionsvoting together as a single class) (such Preferred Stockholders, collectively the “Majority Stockholders”) at any time or from time to time upon not less than thirty (30) days prior written notice to KIT, and instructions the Stockholder Representative may not be removed unless the Majority Stockholders agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholder Representative may resign at any time on notice to KIT, and a replacement Stockholder Representative shall be elected by those Preferred Stockholders who held a majority of the Capital Stock of the Company outstanding immediately prior to the Effective Time (determined on an as-converted to Common Stock basis, voting together as a single class); provided, further, that any successor Stockholder Representative, shall not resign until and unless a successor Stockholder Representative shall have been appointed. The foregoing notwithstanding any replacement or successor Stockholder Representative shall be subject to the approval of KIT, which approval shall not be unreasonably withheld. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser not receive any compensation for his services. Written notices or Surviving Corporation for any action taken communications to or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) from the Stockholder Representative shall be deemed constitute notice to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderfrom the Preferred Stockholders.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (KIT Digital, Inc.)
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint appoints Dan ▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇ as their representative (e "Stockholder Representative") ), its agent and authorize him to take all action necessary in connection with implementation of attorney-in-fact, as the Agreement Stockholder Representative for and on behalf of the Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize release to Parent of Escrow Shares from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as the Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. After all claims for all purposesLosses by Parent set forth in Officer's Certificates delivered to the Escrow Agent and the Stockholder Representative has been satisfied, or reserved against, the Stockholder Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Stockholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Stockholders and shall be final, binding and conclusive upon the Stockholders; howeverand the Escrow Agent and Parent may rely upon any such decision, no change act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Stockholder Representative shall be effective until Purchaser is given notice of it by entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Va Linux Systems Inc)
Stockholder Representative. (a) In order By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders, each of the Stockholders shall be and is hereby deemed to administer efficiently have agreed to appoint the implementation Stockholder Representative as its agent and attorney-in-fact, for and on behalf of the Stockholders, as the Stockholder Representative, to take any action pursuant to or in connection with Article IX, to receive and distribute Merger Consideration as dictated by this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take communications, to negotiate the Final Closing Statement, to authorize payment to any Buyer Indemnified Parties in satisfaction of claims by any such Buyer Indemnified Parties, to object to payments from the Escrow Fund, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to such claims, and to take all other actions with respect to such claims that are either (i) necessary or appropriate in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative shall be effective until Purchaser is given notice for the accomplishment of it the foregoing or (ii) specifically mandated by the Stockholders.
(c) By mere execution terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, Stockholders agree that:
(i) Purchaser may rely conclusively on however, that the instructions and decisions of Stockholder Representative may not be removed unless the Stockholders holding (on an as-exercised basis) a majority of the outstanding shares of the Company Capital Stock held by the Stockholders (as of immediately prior to any actions required or permitted the Effective Time and on an as-converted basis) agree to be taken by Stockholders or such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholder Representative hereunder may resign at any time on notice to Buyer, and under a replacement Stockholder Representative shall be elected by a vote of a majority of the Escrow Agreements outstanding shares of Company Capital Stock (as of immediately prior to the Effective Time and no party on an as-converted basis), subject to the consent of Buyer, which consent shall not be unreasonably withheld; provided, further, that any successor Stockholder Representative, shall not resign until and unless a successor Stockholder Representative shall have any cause been appointed subject to the consent of action against Purchaser for action taken by Purchaser in reliance upon actionsBuyer, decisions or instructions which consent shall not be unreasonably withheld. No bond shall be required of the Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser not receive any compensation for its services. Written notices or Surviving Corporation for any action taken communications to or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) from the Stockholder Representative shall be deemed constitute notice to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderfrom the Stockholders.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (KIT Digital, Inc.)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this AgreementAgreement by unanimous written consent of the Stockholders, the waiver of any conditions each Stockholder shall be deemed to the obligations have consented to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their such Stockholder’s representative and attorney-in-fact ("the “Stockholder Representative") and authorize him ”), with full power of substitution to take all action necessary in connection with implementation of the Agreement act on behalf of Stockholdersthe Stockholders to the extent and in the manner set forth in this Agreement and the Escrow Agreement. This power of attorney and all authority is irrevocable and shall not be terminated by any act of any Stockholder, waive by operation of Law, whether by such Stockholder’s death, disability, protective supervision or any condition other event. Without limitation to the foregoing, this power of attorney is to ensure the performance of a special obligation and, accordingly, each Stockholder hereby renounces his or obligation her right to consummate renounce this power of attorney unilaterally any time before all of the transactions, give Stockholder Representative’s obligations under this Agreement and receive notices and take the Escrow Agreement have been fulfilled. Each Stockholder hereby waives any and all defenses which may be available to contest, negate or disaffirm any action contemplated to be of the Stockholder Representative taken by or on behalf of Stockholders in good faith under this Agreement or the Escrow Agreement. Notwithstanding this power of attorney, and no agreement, instrument, acknowledgement or other act or document shall be ineffective by reason only of Escrow the Stockholders under having signed or given such directly instead of the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative.
(b) In the event Stockholder Representative diesAll decisions, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy actions, consents and be deemed Stockholder Representative for all purposes; however, no change of instructions by the Stockholder Representative shall be effective until Purchaser is given notice binding upon all of it by the Stockholders, and no Stockholder shall have the right to object to, dissent from, protest or otherwise contest the same. The Acquiror and Merger Sub shall be entitled to rely on any decision, action, consent or instruction of the Stockholder Representative as being the decision, action, consent or instruction of the Stockholders, and the Acquiror and Merger Sub are hereby relieved from any liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction.
(c) By mere execution The Stockholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of this AgreementStockholders holding a majority of the aggregate Fully Diluted Shares at the Effective Time held by the Stockholders (the “Majority Holders”). In the event of the death, Stockholders agree that:
(i) Purchaser may incapacity, resignation or removal of the Stockholder Representative, a new Stockholder Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Stockholder Representative shall be sent to the Acquiror, such appointment to be effective upon the later of the date indicated in such consent or the date such consent is received by the Acquiror; provided, that until such notice is received, the Acquiror, Merger Sub and the Surviving Corporation, as applicable, shall be entitled to rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon decisions, actions, decisions or consents and instructions of the prior Stockholder Representative.
(iid) all actions, decisions, and instructions of the The Stockholder Representative shall be conclusive reimbursed by the Principal Stockholders for all costs and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted expenses reasonably incurred by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by the Stockholder Representative in a disproportionate measure compared connection with the performance of the Stockholder Representative’s rights and duties under this Agreement and the Escrow Agreement, and, in this regard, may deduct such expenses from any amounts otherwise distributable to any other Stockholder.
(d) Remedies at law for breach of the Principal Stockholders under this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without Agreement and the necessity of proving damages in an action to enforce this SectionEscrow Agreement.
(e) The provisions Stockholder Representative shall not be liable to the Stockholders for actions taken pursuant to this Agreement or the Escrow Agreement, except to the extent such actions shall have been determined by a court of competent jurisdiction to have constituted willful misconduct or fraud. Except in cases where a court of competent jurisdiction has made such a finding, the Stockholders shall jointly and severally indemnify and hold harmless the Stockholder Representative from and against any and all losses, liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and disbursements, arising out of and in connection with his activities as Stockholder Representative under this Section are independent and severable Agreement, the Escrow Agreement or otherwise.
(f) The Stockholder Representative is authorized, in his sole discretion, to constitute an irrevocable power comply with final, nonappealable orders or decisions issued or process entered by any court of attorney, coupled competent jurisdiction or arbitrator with an interest and surviving death, granted by each Stockholder respect to the Escrow Fund. If any portion of the Escrow Fund is disbursed to the Stockholder Representative and bind executorsis at any time attached, heirsgarnished or levied upon under any court order, successorsor in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and legal representatives. All reasonable fees and expenses incurred by in any such event, the Stockholder Representative is authorized, in his sole discretion, but in good faith, to rely upon and comply with any such order, writ, judgment or decree which he is advised by legal counsel selected by him is binding upon him without the need for appeal or other action; and if the Stockholder Representative complies with any such order, writ, judgment or decree, he shall not be liable to any Stockholder or to any other Person by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) If any Stockholder should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholder Representative pursuant to this Section 2.12 shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Effective Time. The provisions hereof Stockholder Representative or the Acquiror shall survive the Effective Timehave received notice of such death, incapacity, termination or other event.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Stockholders, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation each of the Agreement on behalf of Stockholders, waive any condition Stockholders shall be deemed to or obligation have agreed to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy ▇▇▇▇, ▇▇. as its agent and be deemed attorney-in-fact, as the Stockholder Representative for and on behalf of the Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of at least two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Stockholders.
(cb) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of this Agreementreasonable judgment. The Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, Stockholders agree that:
(i) Purchaser may rely conclusively liability or expense incurred without gross negligence or bad faith on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions part of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause arising out of action against Purchaser or Surviving Corporation for any action taken in connection with the acceptance or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach administration of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorsRepresentative’s duties hereunder, heirs, successors, and legal representatives. All including the reasonable fees and expenses incurred of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Stockholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and Section 8.4 hereof, shall constitute a decision of the Stockholders and shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before final, binding and conclusive upon the Effective TimeStockholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. The provisions hereof shall survive Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Effective TimeStockholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Advent Software Inc /De/)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreementevent the Stockholder Representative shall die or resign or otherwise terminate his status as such, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint his successor shall be ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other person as their representative ("the Stockholder Representative") and authorize him to take all action necessary Representative may appoint. If the successor Stockholder Representative shall die or resign or otherwise terminate his status as such, his successor shall be any person appointed by such successor Stockholder Representative or, in connection with implementation the case of the Agreement on behalf death of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event successor Stockholder Representative diesor his failure to appoint a successor after a vacancy has been created, becomes legally incapacitated elected by the vote or resigns ▇▇▇▇▇▇▇ ▇written consent of a majority in interest of the Employee Stockholders. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change All decisions of the Stockholder Representative shall be effective until Purchaser binding upon the Employee Stockholders. The Stockholder Representative shall keep the Employee Stockholders reasonably informed of his or her material decisions.
(b) The Stockholder Representative is given notice authorized to take any action deemed by him appropriate or necessary to carry out the provisions of, and to determine the rights of it the Employee Stockholders under this Agreement. The Stockholder Representative shall serve as the agent of the Employee Stockholders for all purposes related to this Agreement, including without limitation service of process upon the Employee Stockholders. By execution of this Agreement, the Stockholder Representative accepts and agrees to diligently discharge the duties and responsibilities of the Stockholder Representative set forth in this Agreement. The authorization and designation of the Stockholder Representative under this Section 8(b) shall be binding upon the successors and assigns of each Employee Stockholder. The Buyer and the Escrow Agent shall be entitled to rely upon such authorization and designation and shall be fully protected in dealing with the Stockholder Representative, and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the StockholdersStockholder Representative.
(c) By mere execution of this Agreement, Stockholders agree that:
The Stockholder Representative (i) Purchaser may rely conclusively on shall not be liable to any of the instructions Employee Stockholders for any error of judgment, or action taken or omitted in good faith, or mistake of fact or law unless caused by his own gross negligence or willful misconduct, (ii) shall be entitled to treat as genuine any letter or other document furnished to him by the Buyer, the Employee Stockholders or the Escrow Agent and decisions believed by him to be genuine and to have been signed and presented by the proper party or parties and (iii) shall be reimbursed from the proceeds of Escrow Shares otherwise immediately deliverable to the Employee Stockholders under this Agreement for counsel fees and other out-of-pocket expenses incurred by the Stockholder Representative in connection with this Agreement. Such reimbursement shall be made out of the net proceeds of Escrow Shares by the Escrow Agent as to any actions required or permitted to be taken by provided in Section 8(d). The Employee Stockholders or shall jointly and severally indemnity the Stockholder Representative hereunder and under the Escrow Agreements and no party shall have against any cause losses or claims (including reasonable out-of-pocket expenses) arising out of action against Purchaser for any action taken by Purchaser or omitted in reliance upon actions, decisions or instructions of Stockholder Representativegood faith hereunder.
(iid) all actionsThe Stockholder Representative shall not be entitled to any compensation for services hereunder. To the extent the Stockholder Representative shall incur reasonable out-of-pocket costs in the performance of his duties hereunder, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause authorized to direct the Escrow Agent with prior notice to the Buyer to either (i) sell in the open market that number of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Escrow Shares (up to one percent of the Escrow Shares) sufficient to generate net proceeds to reimburse the Stockholder Representative hereunder.
for such out-of-pocket costs or (iiiii) Stockholder Representative shall deliver or cause to be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder delivered to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred such number of Escrow Shares (up to one percent of the Escrow Shares) as are equal to such out-of-pocket costs divided by Stockholder Representative shall be paid by Stockholders pro rata in proportion the closing price of the Escrow Shares on the business day prior to their percentage interest in Seller immediately before the Effective Timesuch determination. The provisions hereof Escrow Agent shall survive the Effective Timehave sole discretion as to which of such methods it will use to effect such reimbursement.
Appears in 1 contract
Sources: Employee Stockholder Escrow Agreement (CMG Information Services Inc)
Stockholder Representative. (a) In order to administer efficiently the implementation By virtue of their approval of this Agreement, the waiver of any conditions Target Stockholders will be deemed to the obligations to consummate the transactions or the settlement of any dispute have irrevocably constituted and notices under this Agreement or actionsappointed, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ effective as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of StockholdersEffective Time, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fill (the "Stockholder Representative"), as their true and lawful agent and attorney-in-fact to enter into any agreement in connection with the transactions contemplated by this Agreement or the Indemnity Escrow Agreement, to exercise all or any of the powers, authority and discretion conferred on him under any such vacancy agreement, to waive any terms and be deemed Stockholder Representative for conditions of any such agreement, to give and receive notices and communications, to authorize delivery to Acquiror of the Indemnity Escrow Holdback or other property from the Indemnity Escrow in satisfaction of claims by Acquiror, 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 purposes; however, no change actions necessary or appropriate in the judgment of the Stockholder Representative shall for the accomplishment of the foregoing. Such agency may be effective until Purchaser is given notice of it changed by the Stockholders.
holders of a majority in interest of the Indemnity Escrow from time to time upon not less than ten (c10) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of days' prior written notice to Acquiror. The Stockholder Representative as shall receive no compensation for his services. Notices or communications to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of from the Stockholder Representative shall be conclusive and binding on constitute notice to or from each of the Target Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable . This power of attorney, attorney is coupled with an interest and surviving deathis irrevocable.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and not in a manner constituting gross negligence, granted by each Stockholder and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Target Stockholders shall severally indemnify the Stockholder Representative and bind executorshold him harmless against any loss, heirs, successors, and legal representatives. All reasonable fees and expenses liability or expense incurred by without gross negligence or bad faith on the part of such Stockholder Representative shall be paid by Stockholders pro rata and arising out of or in proportion to their percentage interest in Seller immediately before connection with the Effective Time. The provisions hereof shall survive the Effective Timeacceptance or administration of his duties hereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Emusic Com Inc)
Stockholder Representative. (a) In order By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders, each of the Stockholders shall be deemed to administer efficiently have agreed to appoint Cornerstone IV, LLC as its agent and attorney-in-fact, as the implementation Stockholder Representative for and on behalf of the Escrow Participants to take all actions under this Agreement that are to be taken by the Stockholder Representative, including to amend this Agreement, to waive any provision of this Agreement, the waiver of any conditions to the obligations negotiate payments due pursuant to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsArticle VII, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Indemnification Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Party against any Escrow Participant or by any such Escrow Participant against any Indemnified Party or any dispute between any Indemnified Party and any such Escrow Participant, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of at least a two-thirds interest of the Indemnification Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Indemnification Escrow Fund. In the event a vacancy in the position of Stockholder Representative exists for fifteen (15) or more days, Parent shall have the right to petition a court of competent jurisdiction to appoint a replacement Stockholder Representative. No bond shall be required of the Stockholder Representative, and of the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Participants.
(b) In the event The Stockholder Representative diesrepresents and warrants to the Indemnification Escrow Agent that it has the irrevocable right, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy power and be deemed Stockholder Representative for all purposes; however, no change authority (i) to enter into and perform this Agreement and to bind each of the Stockholder Representative shall Escrow Participants to its terms, (ii) to give and receive directions and notices hereunder and (iii) to make all determinations that may be effective until Purchaser is given notice of required or that it by the Stockholdersdeems appropriate under this Agreement.
(c) By mere execution Until notified in writing by the Stockholder Representative that it has resigned, or that it has been removed by at least two-thirds in interest of this Agreementthe Indemnification Escrow Fund, the Indemnification Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the Stockholder Representative named above and, thereafter, upon the directions, instructions and notices of any successor named in a writing executed by a majority-in-interest of the Indemnification Escrow Fund filed with the Indemnification Escrow Agent.
(d) The Company, the Escrow Participants and the Stockholders agree thateach hereby authorize the Stockholder Representative to:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required Receive all notices or permitted documents given or to be taken by Stockholders or Stockholder Representative hereunder and under given to the Escrow Agreements Participants or the Stockholders pursuant hereto or in connection herewith or therewith and no party shall have to receive and accept services of legal process in connection with any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions suit or instructions of Stockholder Representative.proceeding arising under this Agreement;
(ii) all actions, decisionsEngage counsel, and instructions of such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.may in its sole discretion deem appropriate;
(iii) use the Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long Escrow Fund as no a reserve against the payment of expenses incurred in its capacity as the Stockholder is adversely affected by any Representative; and
(iv) Take such action or failure to act by as the Stockholder Representative may in a disproportionate measure compared its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as the Stockholder Representative is authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in its capacity as Stockholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any other Stockholder.
(d) Remedies at law for breach of the transactions contemplated by this Section would be inadequateAgreement, therefore Purchaser shall be entitled to injunctive reliefincluding, without limitation, the necessity defense and/or settlement of proving damages in an action any claims for which indemnification is sought pursuant to enforce this SectionArticle VII and any waiver of any obligation of Parent or the Surviving Corporation.
(e) The provisions Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to reasonable judgment. The Escrow Participants shall indemnify the Stockholder Representative and bind executorshold the Stockholder Representative harmless against any loss, heirsliability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, successors, and legal representatives. All including the reasonable fees and expenses incurred of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Escrow Participants and shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before final, binding and conclusive upon the Effective TimeEscrow Participants; and the Indemnification Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Escrow Participants. The provisions hereof shall survive Indemnification Escrow Agent and Parent are hereby relieved from any liability to any person for any decision, act, consent or instruction of the Effective TimeStockholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Nuance Communications, Inc.)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the Company Stockholders, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation each of the Agreement on behalf of Stockholders, waive any condition Effective Time Company Stockholders shall be deemed to or obligation have agreed to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy as its agent and be deemed attorney-in-fact, as the Stockholder Representative for and on behalf of the Effective Time Company Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Effective Time Company Stockholder or by any such Effective Time Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Effective Time Company Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Effective Time Company Stockholders from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Effective Time Company Stockholders.
(ca) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of this Agreementreasonable judgment. The Effective Time Company Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, Stockholders agree that:
(i) Purchaser may rely conclusively liability or expense incurred without gross negligence or bad faith on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions part of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause arising out of action against Purchaser or Surviving Corporation for any action taken in connection with the acceptance or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach administration of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorsRepresentative’s duties hereunder, heirs, successors, and legal representatives. All including the reasonable fees and expenses incurred of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the termination of the Escrow Period, the resolution of all Unresolved Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Stockholder Representative shall be paid by Stockholders pro rata in proportion have the right to their percentage interest in Seller immediately before recover Stockholder Representative Expenses from the Escrow Fund prior to any distribution to the Effective TimeTime Company Stockholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 9.3 and Section 9.4 hereof, shall constitute a decision of the Effective Time Company Stockholders and shall be final, binding and conclusive upon the Effective Time Company Stockholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Effective Time Company Stockholders. The provisions hereof shall survive Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Effective TimeStockholder Representative.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Supergen Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Senior Preferred Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ Capital Venture 2001, L.P. as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Senior Preferred Stockholders (and upon any resignation of ▇▇▇▇ ▇▇▇▇▇ Capital Venture 2001, L.P. as their representative ("the Stockholder Representative", Neocarta Ventures, L.P. as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Senior Preferred Stockholders) and authorize him to take all any action necessary pursuant to or in connection with implementation of the Agreement on behalf of StockholdersSection 4.15 and Article VII, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party in satisfaction of claims by any Indemnified Party, to object to payments from the Indemnification Escrow Fund, 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 any and all action contemplated other actions with respect to be taken such claims that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Senior Preferred Stockholders from time to time upon not less than thirty (30) days prior written notice to Buyer; provided, however, that the Stockholder Representative may not be removed unless the Senior Preferred Stockholders holding (on an as-exercised basis) a majority of the outstanding shares of the Senior Preferred Stock held by the Senior Preferred Stockholders (as of immediately prior to the Effective Time) agree to such removal and to the identity of the substituted agent. ▇▇▇▇ Capital Venture 2001, L.P. may resign as the Stockholder Representative at any time upon written notice to Buyer, whereupon Neocarta Ventures, L.P. shall immediately become the Stockholder Representative through no further action on the part of the Senior Preferred Stockholders. Notwithstanding the foregoing, the Stockholder Representative may resign at any time on notice to Buyer, and a replacement Stockholder Representative shall be elected by a vote of Escrow Stockholders under a majority of the Earnout Escrow Agreement outstanding shares of Senior Preferred Stock (as of immediately prior to the Effective Time), subject to the consent of Buyer, which consent shall not be unreasonably withheld; provided, further, that Neocarta Ventures, L.P. or any successor Stockholder Representative, as applicable, shall not resign until and unless a successor Stockholder Representative shall have been appointed subject to the consent of Buyer, which consent shall not be unreasonably withheld. No bond shall be required of the Stockholder Representative, and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall not receive any compensation for its services. Written notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders and Senior Preferred Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable to the Senior Preferred Stockholders for any act done or resigns ▇▇▇▇▇▇▇ ▇omitted hereunder as Stockholder Representative. ▇▇▇▇▇ The Stockholders shall fill such vacancy and be deemed indemnify the Stockholder Representative for all purposes; howeverand hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders.
Stockholder Representative to the extent such loss, liability or expense is not paid from the Stockholder Representative Escrow Fund. The Stockholder Representative may make claims for reimbursement from the Stockholder Representative Escrow Fund for any loss or liability paid by the Stockholder Representative to any third-party or any third party expense in each such case arising out of or in connection with the acceptance of administration of its duties hereunder (c) By mere execution “Stockholder Representative Expense Claims”). Except as otherwise provided in Section 8.1, a decision, act, consent or instruction of the Stockholder Representative with respect to an indemnification claim, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Senior Preferred Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon the Senior Preferred Stockholders; and Buyer and the Escrow Agent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders including the Senior Preferred Stockholders. Each of Buyer and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation the Escrow Agent is hereby relieved from any liability to any person for any action taken decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timethat is authorized pursuant this Section 7.5.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇ ▇J▇▇▇ ▇▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Stockholders to or obligation to consummate the transactions, give and receive notices and take communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the Earnout Escrow Agreement transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative for the accomplishment of the foregoing, or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Stockholders.
(ca) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith without gross negligence. The Stockholders shall severally (each based on its Pro Rata Portion) but not jointly indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event the Stockholder Representative diesshall die or resign or otherwise terminate his status as such, becomes legally incapacitated or resigns his successor shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill or such vacancy and be deemed other person as the Stockholder Representative for all purposes; howevermay appoint. If the successor Stockholder Representative shall die or resign or otherwise terminate his status as such, no change his successor shall be any person appointed by such successor Stockholder Representative or, in the case of his failure to appoint a successor after a vacancy has been created, elected by the vote or written consent of a majority in interest of the Stockholders. All decisions of the Stockholder Representative shall be effective until Purchaser is given notice of it by binding upon the Stockholders. The Stockholder Representative shall keep the Stockholders reasonably informed of his or her material decisions.
(b) The Stockholder Representative is authorized to take any action deemed by him appropriate or necessary to carry out the provisions of, and to determine the rights of the Stockholders under this Agreement. The Stockholder Representative shall serve as the agent of the Stockholders for all purposes related to this Agreement, including without limitation service of process upon the Stockholders. By execution of this Agreement, the Stockholder Representative accepts and agrees to diligently discharge the duties and responsibilities of the Stockholder Representative set forth in this Agreement without compensation for his services hereunder. The authorization and designation of the Stockholder Representative under this Section 7(b) shall be binding upon the successors and assigns of each Stockholder. Helix and the Escrow Agent shall be entitled to rely upon such authorization and designation and shall be fully protected in dealing with the Stockholder Representative, and shall have no duty to inquire into the authority of any person reasonably believed by any of them to be the Stockholder Representative.
(c) By mere execution of this Agreement, Stockholders agree that:
The Stockholder Representative (i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as shall not be liable to any actions required of the Stockholders for any error of judgment, or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken or omitted in good faith, or mistake of fact or law unless caused by Purchaser in reliance upon actionshis own gross negligence or willful misconduct, decisions or instructions of Stockholder Representative.
(ii) all actionsshall be entitled to treat as genuine any letter or other document furnished to him by Helix, decisionsthe Stockholders or the Escrow Agent and believed by him to be genuine and to have been signed and presented by the proper party or parties, and instructions (iii) shall be reimbursed, upon presentation of an invoice, from the Escrowed Shares, in an amount sufficient after sale of such released shares, to pay all counsel fees and other out-of-pocket expenses incurred by the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderconnection with this Agreement.
(d) Remedies at law The Stockholder Representative, warrants and agrees that he is authorized to execute this agreement for breach and on behalf of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this SectionStockholders.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of The Company Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under adopting this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectivelytransactions contemplated hereby, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns irrevocably appoint and constitute ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed as the Stockholder Representative for and on behalf of the Company Stockholders to execute and deliver this Agreement and the Escrow Agreement and for all purposes; howeverother purposes hereunder and thereunder, no change to give and receive notices and communications, to authorize delivery of the applicable portion of the Escrow Fund in satisfaction of claims by Parent Indemnitees, to object to such deliveries and claims for indemnification by Parent Indemnitees, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement and the Escrow Agreement, retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and the Ancillary Agreements to which the Company or the Stockholder Representative is a party and the transactions contemplated hereby and thereby and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of any or all of the foregoing. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts his appointment as the Stockholder Representative. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time upon not less than ten (10) days’ prior written notice to all of the Company Stockholders and to Parent. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for his services. Notices or communications to or from the Stockholder Representative to Parent shall constitute notice to or from each of it the Company Stockholders. Each Company Stockholder agrees to receive correspondence from the Stockholder Representative, including in electronic form.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith without gross negligence and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholder Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Except as otherwise specified in this Agreement, all costs and expenses incurred by the StockholdersStockholder Representative in connection with this Agreement, the Escrow Agreement and the transactions contemplated hereby, including reasonable attorneys' fees, shall be paid from the Stockholder Representative Expense Amount in accordance with the terms of the Escrow Agreement. Should the Stockholder Representative Expense Amount be exhausted, all costs and expenses incurred by the Stockholder Representative in connection with this Agreement, the Escrow Agreement and the transactions contemplated hereby, including reasonable attorneys' fees, shall be reimbursed directly from the Company Stockholders on a pro rata basis (based on their aggregate Per Share Escrow Contribution), including out of distributions to them of the Escrow Fund at the First Release Date or the Second Release Date, as applicable, or set off against any distribution of the Earnout Amount, without the requirement of any consent or approval by Parent or any other Person; provided that neither Parent nor the Surviving Corporation shall have any liability with respect to such items.
(c) By mere execution The Stockholder Representative shall have reasonable access to information about the Company (as the Surviving Corporation) and Parent and the reasonable assistance of the Company’s (as the Surviving Corporation) and Parent’s officers and employees for purposes of performing his duties and exercising his rights under this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actionsprovided, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of that the Stockholder Representative shall be conclusive treat confidentially and binding not disclose any nonpublic information from or about the Company (as the Surviving Corporation) or Parent to anyone (except on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
need to know basis to individuals (iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder identified to the Stockholder Representative Company and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata Parent in proportion advance) who agree in writing to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timetreat such information confidentially).
Appears in 1 contract
Sources: Sale and Purchase of Shares Agreement (Nice Systems LTD)
Stockholder Representative. (a) In order JA Holding, LLC (such Person, and any successor or successors, is referred to administer efficiently as the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("“Stockholder Representative"”) and authorize him to take all action necessary in connection with implementation shall act as the representative of the Agreement Stockholders and Optionholders, and shall be authorized to act on behalf of Stockholders, waive any condition the Stockholders and Optionholders and to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder under this Agreement, including with respect to (i) the calculation of Closing Working Capital pursuant to Section 1.13; (ii) any amendment or modification of this Agreement, provided that if any such amendment or modification is materially disproportionately adverse to the interests of a particular Stockholder, then such amendment or modification shall require the written approval of such Stockholder and the Stockholder Representative shall not be authorized to approve such amendment or modification on behalf of such Stockholder; and (iii) determining the amount of the Reserve to be retained and the amount, timing and circumstances of any distribution from the Reserve. JA Holding, LLC shall not receive compensation for its services as the Stockholder Representative. The Stockholders and Optionholders shall be bound by all actions taken by the Stockholder Representative in its capacity thereof. The Stockholder Representative shall promptly, and in any event within ten (10) Business Days, provide written notice to the Stockholders and Optionholders of any action taken on behalf of the Stockholders and Optionholders by the Stockholder Representative pursuant to the authority delegated to the Stockholder Representative under this Section. The Stockholder Representative shall, at all times, act in its capacity as Stockholder Representative in a manner that the Escrow Agreements Stockholder Representative believes to be in the best interest of the Stockholders and no party Optionholders. Neither the Stockholder Representative nor any of its Representatives shall be liable to any Stockholder or any other Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the other Transaction Documents, except in the case of the Stockholder Representative’s willful misconduct. The Stockholder Representative may consult with legal counsel, independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of counsel, accountants, or experts. The Stockholder Representative shall not have any cause duty to ascertain or to inquire as to the performance or observance of action against Purchaser any of the terms, covenants, or conditions of this Agreement or the other Transaction Documents. As to any matters not expressly provided for action taken by Purchaser in reliance upon actionsthis Agreement or the other Transaction Documents, the Stockholder Representative shall not be required to exercise any discretion or take any action. The Stockholder Representative shall be entitled to rely on all statements, representations and decisions of the Company or instructions of Stockholder Representativeany Stockholder.
(iib) The Stockholders and Optionholders shall severally indemnify and hold harmless the Stockholder Representative and any of its Representatives from and against such Stockholder’s ratable share of any and all actionsliabilities, decisionsLosses, and instructions or expenses (including reasonable attorneys’ fees) reasonably incurred or suffered by the Stockholder Representative (including, without limitation, in connection with any action brought or otherwise initiated by any Stockholder) arising out of or otherwise resulting from any action taken or omitted to be taken by the Stockholder Representative under this Agreement or the other Transaction Documents.
(c) The appointment of the Stockholder Representative shall be conclusive deemed coupled with an interest and binding on Stockholders; no Stockholder shall have a cause be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any actions of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by the Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed as the acts of the Stockholders and Optionholders in all matters referred to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderthis Agreement.
(d) Remedies at law for breach The Stockholder Representative is authorized to act on behalf of this Section would be inadequatethe Stockholders and Optionholders notwithstanding any dispute or disagreement among the Stockholders and Optionholders, therefore Purchaser and any Person shall be entitled to injunctive reliefrely on any and all action by the Stockholder Representative under this Agreement without liability to, without or obligation to inquire of, any of the necessity of proving damages in an action to enforce this SectionStockholders and Optionholders.
(e) The provisions Stockholder Representative may resign at any time by giving notice to the Buyer, the Company, and the Stockholders and Optionholders (at their addresses last known to such Stockholder Representative), which resignation shall be effective upon the designation of this Section are independent a successor, the acceptance of the designation by such successor and severable the giving of notice thereof to constitute an irrevocable power the Buyer, the Company, and the Stockholders and Optionholders.
(f) In the event of attorneythe Stockholder Representative’s resignation, coupled with an interest and surviving death, granted by each Stockholder dissolution or inability to perform the duties of the Stockholder Representative and bind executorsas set forth in this Section, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by the Stockholder Representative shall designate another Person to serve as a successor Stockholder Representative. In the event that the Stockholder Representative fails to so designate a successor, then the Stockholders and Optionholders shall use their commercially reasonable efforts to promptly designate (by the Stockholders and Optionholders representing a majority of the Seller Percentage) another Person as a successor Stockholder Representative.
(g) The Buyer and the Company shall be paid by Stockholders pro rata in proportion entitled to their percentage interest in Seller immediately before rely on all statements, representations, and decisions of the Effective Time. The provisions hereof shall survive the Effective TimeStockholder Representative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreementevent that the Merger is approved, the waiver effective upon such vote, and without further act of any conditions Stockholder, Shareholder Representative Services LLC, a Colorado limited liability company shall be appointed as agent and attorney-in-fact (the “Stockholder Representative”) for each Stockholder (except such Stockholders, if any, as shall have perfected their appraisal rights under Delaware Law), for and on behalf of such Stockholders, to the obligations to consummate the transactions take all actions required or the settlement of any dispute and notices under permitted by this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him including without limitation to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to Parent of funds from the Escrow Funds in satisfaction of claims by Parent, 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 Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent and Escrow Agent; provided that the Stockholder Representative may not be removed unless holders of a majority–in–interest of the Escrow Funds agree to such removal and to the identity of the substituted agent. If the Stockholder Representative shall resign or there is otherwise any vacancy in the position of Stockholder Representative, such vacancy may be filled by approval of the holders of a majority–in–interest of the Escrow Funds. No bond shall be required of the Stockholder Representative, and all action contemplated the Stockholder Representative shall not receive compensation for his, her or its services other than pursuant to be taken by the terms of the Stockholder Representative Agreement entered into between Shareholder Representative Services LLC, the Company and certain of the Stockholders on or on behalf about the date hereof. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Stockholders for purposes of claims against the Escrow Funds under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Agreement.
(b) In The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith.
(c) Notwithstanding anything to the contrary contained herein, each Indemnifying Party shall severally and not jointly (and solely in proportion to their respective Pro Rata Share) indemnify and hold harmless and reimburse the Stockholder Representative from and against any and all Losses suffered or incurred by the Stockholder Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholder Representative under this Agreement (collectively, the “Stockholder Representative Expenses”) provided that in the event it is finally adjudicated that a Stockholder Representative diesExpense or any portion thereof was primarily caused by the gross negligence, becomes legally incapacitated bad faith or resigns ▇▇▇▇▇▇▇ ▇willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Stockholder Representative Expense attributable to such gross negligence, bad faith or willful misconduct. ▇▇▇▇▇ At the Closing, UK Acquiror shall fill such vacancy and deposit an amount equal to the Stockholder Representative Escrow Amount to an account designated in writing by the Stockholder Representative, to be deemed held by the Stockholder Representative for the payment of expenses incurred by the Stockholder Representative in performing his, her or its duties pursuant to this Agreement. The Stockholder Representative Escrow Amount shall be held by the Stockholder Representative as agent and for the benefit of the Indemnifying Parties in a segregated client account and shall be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any Stockholder Representative Expenses. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Indemnifying Parties shall not receive interest or other earnings on the Stockholder Representative Escrow Amount and the Indemnifying Parties irrevocably transfer and assign to the Stockholder Representative any ownership right that they may have in any interest that may accrue on the Stockholder Representative Escrow Amount. The Indemnifying Parties acknowledge that the Stockholder Representative is not providing any investment supervision, recommendations or advice. The Stockholder Representative shall have no responsibility or liability for any loss of principal of the Stockholder Representative Escrow Amount other than as a result of its gross negligence, bad faith or willful misconduct. For tax purposes, the Stockholder Representative Escrow Amount shall be treated as having been received and voluntarily set aside by the Indemnifying Parties at the time of Closing.
(d) Any of the Stockholder Representative Escrow Amount originally deposited with the Stockholder Representative at the Closing that has not been expended or that the Stockholder Representative is not permitted to otherwise retain pursuant to the terms of this Agreement as soon as practicable following the latest of (i) the end of the Escrow Period, (ii) the date on which all purposes; howeverindemnification claims of the Indemnified Parties outstanding at the end of such period have been discharged in full and (iii) the date on which all earn-out matters shall have been fully resolved, shall be returned by the Stockholder Representative to the Escrow Agent and will constitute a “Released Escrow Amount” and will be allocated in accordance with the provisions of Section 2.6(f). Parent shall have no change Liability relating to the administration of the Stockholder Representative Escrow Amount. Additionally, following the termination of the Escrow Period, or, with respect to any portions of the Escrow Funds retained beyond the Escrow Period for pending claims, following the date on which such indemnification claims of the Indemnified Parties outstanding at the end of such period have been discharged in full, with respect to any Stockholder Representative Expenses that are not reimbursed by any Indemnifying Party as provided for herein, the Stockholder Representative shall be effective until Purchaser is given notice entitled to set off such Stockholder Representative Expenses against the Escrow Amount that would otherwise have been distributed to such Indemnifying Parties pursuant to the terms hereof at the time of it distribution in accordance with written instructions delivered by the StockholdersStockholder Representative to the Escrow Agent; provided, however, that no such Stockholder Representative Expenses shall be set off against the Escrow Funds prior to the date(s) on which funds from the Escrow Funds would otherwise be distributable to the Indemnifying Parties as provided for herein, and no Stockholder Representative Expenses shall be reimbursed from or set off against the Escrow Funds if the aggregate Losses of the Indemnifying Parties hereunder exceed the Escrow Funds. For the avoidance of doubt, while this section allows the Stockholder Representative to be paid from the Stockholder Representative Escrow Amount, this does not relieve the Indemnifying Parties from their obligation to promptly pay any Stockholder Representative Expenses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise against the Indemnifying Parties.
(ce) By mere execution A decision, act, consent, or instruction of this Agreementthe Stockholder Representative with respect to the Escrow Funds shall constitute a decision of all the Stockholders for whom a portion of the Escrow Amount otherwise issuable to them is deposited in the Escrow Funds and shall be final, binding, and conclusive upon each of such Stockholders agree that:
(i) Purchaser with respect to the Escrow Funds, and the Escrow Agent and Parent may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of each and every such Stockholder. The Escrow Agent and Parent are hereby relieved from any Liability to any actions required Person for any acts done by them in accordance with such decision, act, consent, or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iif) Following the delivery of each indemnification claim notice and the Final Revenue Certification, the Stockholder Representative and its representatives and agents shall be given all actionssuch access (including electronic access, decisionsto the extent available) as they may reasonably require to the books and records of the Surviving Corporation and access to such personnel or representatives of the Surviving Corporation and Parent, and instructions including but not limited to the individuals responsible for preparing the Final Revenue Certification or the individuals responsible for the matters that are subject of such claim notice, as the case may be, as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in such Final Revenue Certification or claim notice, as applicable.
(g) Notwithstanding any other provisions of this Section 8.6, the authority of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction is limited as given or omitted by follows: (i) the Stockholder Representative hereunder.
may not agree to any amendment, modification or waiver of this Agreement or the Escrow Agreement which would decrease the aggregate amount payable to any Stockholder pursuant to this Agreement without the consent of such Stockholder; (ii) the Stockholder Representative may not agree to any amendment, modification or waiver of this Agreement or the Escrow Agreement which would result in the amounts payable by the UK Acquiror or Merger Sub as consideration for the issued and outstanding shares of Company Capital Stock represented by the Certificates being distributed in any manner other than as set forth in this Agreement, without the consent of all of the Consideration Recipients; (iii) the Stockholder Representative shall may not agree to any amendment, modification or waiver of this Agreement or the Escrow Agreement which would result in an increase of any Stockholder’s indemnity or other obligations or liabilities under this Agreement or the Escrow Agreement without the consent of such Stockholder; and (iv) the Stockholder Representative may not agree to any amendment, modification or waiver to this Agreement or the Escrow Agreement which provides for any increase in the amount of the Escrow to be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected provided by any action Consideration Recipient, or failure any decrease in the amount of consideration to act be received by Stockholder Representative in any Consideration Recipient, or any extension of the time period for when any monies receivable by a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would Consideration Recipient will actually be inadequate, therefore Purchaser shall be entitled to injunctive reliefreceived by such Consideration Recipient, without the necessity prior written consent of proving damages in an action to enforce this Sectionsuch Consideration Recipient.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation execution and delivery of a Joinder Agreement, and the adoption of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Agreement and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation approval of the Agreement Merger by the Stockholders, each of the Indemnifying Parties shall be deemed to have agreed to appoint Beacon Equity Partners, LLC as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Indemnifying Parties to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications in respect of indemnification claims under this Agreement to be taken recovered against the Escrow Funds, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or on behalf by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of Stockholders under the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Funds agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Stockholder Representative or other vacancy in the position of Stockholder Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Funds. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In A decision, act, consent or instruction of the event Stockholder Representative diesRepresentative, becomes legally incapacitated including an amendment of any provision of this Agreement pursuant to Section 10.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties, and Parent may rely upon any such decision, act, consent or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change instruction of the Stockholder Representative shall be effective until Purchaser as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is given notice hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or instruction of it by the StockholdersStockholder Representative.
(c) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Indemnifying Parties on whose behalf the Indemnity Escrow Amount was contributed to the Indemnity Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any and all Losses arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). Following the Expiration Date, the resolution of all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses incurred not previously recovered directly from the Indemnifying Parties from the Indemnity Escrow Fund or the Special Escrow Fund, prior to any distribution to the Indemnifying Parties, and prior to any such distribution, shall deliver to the Parent a certificate setting forth the Stockholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Stockholder Representative to be paid from the Indemnity Escrow Fund or the Special Escrow Fund, this Section 8.6(c) shall not limit the obligation of any Indemnifying Party to promptly pay such Stockholder Representative Expenses as they are incurred. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 10.2 or Section 10.3, Stockholders agree that:
(i) Purchaser shall constitute a decision of the Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and the Parent may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Parent is hereby relieved from any liability to any actions required person for any acts done by it in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before At or promptly following the Effective Time, the Parent will wire to the Stockholders Representative $100,000 (the “Expense Fund”) which will be used (i) for the purposes of paying directly, or reimbursing the Stockholders Representative for, any Stockholders Representative Expenses incurred pursuant to this Agreement and the Escrow Agreement or (ii) as otherwise determined by the Indemnifying Parties. The provisions hereof Stockholders Representative is not providing any investment supervision, recommendations or advice and shall survive have no responsibility or liability for any loss of principal of the Effective TimeExpense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and has no tax reporting or income distribution obligations. The Indemnifying Parties will not receive any interest on the Expense Fund and assign to the Stockholders Representative any such interest. In any event no later than contemporaneously with or as soon as practicable following the earlier of the Expiration Date and the completion of the Stockholders Representative responsibilities, the Stockholders Representative will deliver the balance of the Expense Fund (the “Expense Fund Surplus”) to the Paying Agent or the Surviving Corporation, as applicable, for further distribution to the Indemnifying Parties in accordance with their respective Pro Rata Portions, as applied to such portion of the Expense Fund. For tax purposes, the amount set aside as the Expense Fund will be treated as paid by the Parent to the Indemnifying Parties, and received and voluntarily set aside by the Indemnifying Parties at the time of Closing.
Appears in 1 contract
Stockholder Representative. (a) In order By virtue of the execution and delivery of a Joinder Agreement and/or a Stockholder Written Consent, and the adoption of this Agreement and approval of the Mergers by the Stockholders, each of the Indemnifying Parties shall be deemed to administer efficiently have agreed to appoint Shareholder Representative Services LLC as its representative, agent and attorney-in-fact, as the implementation Stockholder Representative for and on behalf of the Indemnifying Parties for all purposes in connection with this Agreement and any agreements ancillary hereto, including to give and receive notices and communications in respect of indemnification claims under this Agreement, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of any indemnification claims hereunder by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated or permitted by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, in the event of a resignation of the Stockholder Representative or other vacancy in the position of Stockholder Representative, such vacancy may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) The Stockholder Representative shall not be liable for any act done or omitted in connection with the Stockholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto, while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Parties shall indemnify and defend the Stockholder Representative and hold the Stockholder Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative and any amounts required to be paid by the Stockholder Representative to the Escrow Agent pursuant to the Escrow Agreement (“Stockholder Representative Expenses”), in each case, as such Stockholder Representative Expense is incurred or suffered; provided, that in the event that any such Stockholder Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the waiver Stockholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Stockholder Representative Expense to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Indemnifying Parties, any such Stockholder Representative Expenses may be recovered by the Stockholder Representative from (i) the Representative Expense Amount and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributed to the Indemnifying Parties. The Representative Expense Amount shall be available to pay directly, or reimburse the Stockholder Representative for, any Stockholder Representative Expenses. Following the Expiration Date, the Stockholder Representative shall have the right to recover Stockholder Representative Expenses not previously recovered from the Representative Fund from the Escrow Fund prior to any distribution to the Indemnifying Parties (provided that such funds would otherwise be released to the Indemnifying Parties and are no longer subject to any pending indemnification claims), and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually incurred and not previously recovered. For the avoidance of doubt, while this section allows the Stockholder Representative to be paid from the Representative Fund and the Escrow Fund, this Section 7.5(b) shall not limit the obligation of any conditions Indemnifying Party to promptly pay such Stockholder Representative Expenses as they are incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. The Indemnifying Parties acknowledge and agree that the foregoing indemnities in this Section 7.5(b) will survive the resignation or removal of the Stockholder Representative or the termination of this Agreement (notwithstanding Section 6.2). Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Indemnifying Parties set forth elsewhere in this Agreement are not intended to consummate be applicable to the transactions or indemnities provided to the settlement Stockholder Representative under this section. Following the Expiration Date, the resolution of any dispute and notices all indemnification claims made under this Agreement and the satisfaction of all such indemnification claims, the Stockholder Representative shall distribute such portion of the Representative Expense Amount that has not been used to reimburse the Stockholder Representative for Stockholder Representative Expenses, if any, to the Escrow Agent, who will promptly distribute such funds to the Indemnifying Parties in accordance with their respective Pro Rata Portions. A decision, act, consent or actionsinstruction of the Stockholder Representative, settlement including an amendment, extension or notices under waiver of this Agreement pursuant to Section 8.2 or Section 8.3, shall constitute a decision of the Earnout Indemnifying Parties and shall be final, conclusive and binding upon the Indemnifying Parties; and the Escrow Agreement Agent and Parent may rely upon any such decision, act, consent or Indemnity instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Escrow AgreementAgent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, Stockholders hereby appoint act, consent or instruction of the Stockholder Representative.
(c) Notwithstanding that the Company and its Subsidiaries have been represented by ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy LLP (the “Firm”) in the preparation, negotiation and be deemed Stockholder Representative for all purposes; however, no change of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this AgreementAgreement and the Related Agreements (collectively, Stockholders agree that:
(i) Purchaser the “Transaction Agreements”), each of Parent and the Company agrees that after the Closing the Firm may rely conclusively on represent the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) , the Indemnifying Parties and/or their Affiliates in all actionsmatters related to the Transaction Agreements, decisionsincluding without limitation in respect of any indemnification claims pursuant to the Transaction Agreements. Each of Parent and the Company hereby acknowledges, on behalf of itself and its Affiliates, that it has had an opportunity to ask for and has obtained information relevant to such representation, including disclosure of the reasonably foreseeable adverse consequences of such representation, and instructions it hereby waives any conflict arising out of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholdersuch future representation.
(d) Remedies at law for breach Each of this Section would Parent and the Company hereby acknowledges, on behalf of itself and its Affiliates, that the Firm has represented the Company and its Subsidiaries in connection with the transactions contemplated by the Transaction Agreements. Such parties agree that any attorney-client privilege and attorney work-product protection belonging to the Company and related to the transactions contemplated by the Transaction Agreements, and all information and documents to the extent covered by such privilege or protection shall, after the Closing, belong to, be inadequatedeemed the right of, therefore Purchaser shall and be entitled to injunctive relief, without controlled solely by the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent Indemnifying Parties and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted may only be waived by each Stockholder to the Stockholder Representative and bind executorson behalf of the Indemnifying Parties. To the extent that Parent or the Company receives or takes physical possession of any privileged or protected material covered by this Section 7.5(d) after the Closing, heirssuch physical possession or receipt shall not, successorsin any way, and legal representatives. All reasonable fees and expenses incurred be deemed a waiver by Stockholder Representative shall be paid by Stockholders pro rata the Indemnifying Parties of the privileges or protections described in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timethis Section 7.5.
Appears in 1 contract
Sources: Merger Agreement (FireEye, Inc.)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreementevent that the Merger is approved, the waiver effective upon such vote, and without further act of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsCompany Stockholder, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill be appointed as agent and attorney-in-fact (the "Stockholder Representative") for each Company Stockholder, for and on behalf of the Company Stockholders, to give and receive notices and communications, to authorize delivery to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such vacancy deliveries, to agree to, negotiate, enter into settlements and be deemed 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 Stockholder Representative for all purposesthe accomplishment of the foregoing. Such agency may be changed by the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, no change that the Stockholder Representative may not be removed unless holders of a two-thirds interest in the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest in the Escrow Fund. No bond shall be required of the Stockholder Representatives, and a Stockholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Stockholder Representatives shall constitute notice to or from each of the Company Stockholder.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Company Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative.
(c) A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision of all Company Stockholders for whom a portion of the Escrow Amount otherwise issuable to them are deposited in the Escrow Fund and shall be effective until Purchaser is given notice final, binding and conclusive upon each of it by such Company Stockholders, and the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser Escrow Agent and Parent may rely conclusively on upon any such decision, act, consent or instruction of the instructions Stockholder Representatives as being the decision, act, consent or instruction of each and decisions of Stockholder Representative as every such Company Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to any actions required person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Stockholder Representative. (a) In order Subject to administer efficiently the implementation of this Agreementlimitations set forth herein, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Stockholder Representative is hereby constituted and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ appointed as their representative ("Stockholder Representative") agent for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of the Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and take legal actions 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 Stockholder Representative for the accomplishment of the foregoing. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall receive no compensation for services rendered. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Stockholders.
(b) The Stockholder Representative shall not be liable to the other Stockholders for any act done or omitted hereunder in his capacity as Stockholder Representative, except to the extent it has acted with gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that he did not act with gross negligence or willful misconduct. The other Stockholders shall severally indemnify the Stockholder Representative and hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Stockholder Representative (“Outstanding Stockholder Representative Expenses”). If not paid directly to the Stockholder Representative by the Stockholders, such losses, liabilities or expenses may be recovered by the Stockholder Representative from the Indemnity Escrow Fund (as defined in the Merger Agreement) that otherwise would be distributed to the Stockholders after giving effect to, and satisfaction of, all action contemplated claims for indemnification made by the Parent Indemnified Parties pursuant to Article 9 of the Merger Agreement, and such recovery (if any) of Outstanding Stockholder Representative Expenses from such Indemnity Escrow Fund will be taken by or made from the Stockholders according to their respective Pro Rata Portion (as defined in the Merger Agreement).
(c) To the extent the Stockholder Representative is permitted to act on behalf of the Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectivelya decision, "Escrow Agreements").
(b) In the event Stockholder Representative diesact, becomes legally incapacitated consent or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change instruction of the Stockholder Representative shall constitute a decision of all the Stockholders and shall be effective until Purchaser is given notice final, binding and conclusive upon each of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive and binding on as being the decision, act, consent or instruction of each of the Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation . Parent is hereby relieved from any liability to any person for any action taken acts done by it in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Indemnifying Stockholders hereby agree to appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill as their exclusive agent and attorney-in-fact, as the “Stockholder Representative” for and on behalf of the Indemnifying Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such vacancy payments, to agree to, negotiate, enter into settlements and be deemed compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Indemnifying Stockholder Representative for or by any such Indemnifying Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by a majority-in-interest of the Indemnifying Stockholders from time to time upon not less than 30 days prior written notice to Transferee. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority-in-interest of the Indemnifying Stockholders (based on their holdings in capital stock of Transferor). No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Indemnifying Stockholders.
(cb) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of this Agreementreasonable judgment. The Indemnifying Stockholders shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, Stockholders agree that:
(i) Purchaser may rely conclusively liability or expense incurred without gross negligence or bad faith on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions part of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause arising out of action against Purchaser or Surviving Corporation for any action taken in connection with the acceptance or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach administration of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executorsRepresentative’s duties hereunder, heirs, successors, and legal representatives. All including the reasonable fees and expenses incurred of any legal counsel retained by the Stockholder Representative (“Stockholder Representative Expenses”). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 14.1 and Section 14.2 hereof, shall constitute a decision of the Indemnifying Stockholders and shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before final, binding and conclusive upon the Effective TimeIndemnifying Stockholders; and the Escrow Agent and Transferee may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Stockholders. The provisions hereof shall survive Escrow Agent and Transferee are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Effective TimeStockholder Representative.
Appears in 1 contract
Sources: Asset Transfer Agreement (Corio Inc)
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow AgreementStockholders shall be deemed to have agreed to appoint Mikael Berner as its agent and attorney-in-fact, Stockholders hereby appoint as the Stockholder Re▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill for and on behalf of the Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such vacancy payments, to agree to, negotiate, enter into settlements and be deemed compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder Representative for or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) contemplated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled, or a substitution of a new Stockholder Representative may be effected, by the holders of a majority in interest of the Escrow Fund. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Stockholders.
(cb) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith without gross negligence. The Stockholders shall severally (each based on its Pro Rata Portion) but not jointly indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative ("STOCKHOLDER REPRESENTATIVE EXPENSES"). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow AgreementParticipating Stockholders shall be deemed to have agreed to appoint the Stockholder Representative as its agent and attorney-in-fact, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ for and on behalf of the Participating Stockholders, as their representative ("the Stockholder Representative", as its agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Participating Stockholders) and authorize him to take all any action necessary pursuant to or in connection with implementation of the Agreement on behalf of StockholdersArticle VIII, waive any condition to or obligation to consummate the transactions, give and receive notices and take communications, to authorize payment to any KIT Indemnified Parties in satisfaction of claims by any such KIT Indemnified Parties, to object to payments from the Escrow Fund, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to such claims, and to take all other actions with respect to such claims that are either (i) necessary or appropriate in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative shall be effective until Purchaser is given notice for the accomplishment of it the foregoing or (ii) specifically mandated by the Stockholders.
(c) By mere execution terms of this Agreement. Such agency may be changed by the Participating Stockholders from time to time upon not less than thirty (30) days prior written notice to KIT; provided, Stockholders agree that:
(i) Purchaser may rely conclusively on however, that the instructions and decisions of Stockholder Representative may not be removed unless the Participating Stockholders holding (on an as-exercised basis) a majority of the outstanding shares of the Participating Stock held by the Participating Stockholders (as of immediately prior to any actions required or permitted the Effective Time) agree to be taken by Stockholders or such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholder Representative hereunder may resign at any time on notice to KIT, and under a replacement Stockholder Representative shall be elected by a vote of a majority of the Escrow Agreements outstanding shares of Participating Stock (as of immediately prior to the Effective Time), subject to the consent of KIT, which consent shall not be unreasonably withheld; provided, further, that any successor Stockholder Representative, shall not resign until and no party unless a successor Stockholder Representative shall have any cause been appointed subject to the consent of action against Purchaser for action taken by Purchaser in reliance upon actionsKIT, decisions or instructions which consent shall not be unreasonably withheld. No bond shall be required of the Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser not receive any compensation for its services. Written notices or Surviving Corporation for any action taken communications to or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) from the Stockholder Representative shall be deemed constitute notice to fulfill any fiduciary obligation to or from the Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholderand Participating Stockholders.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (KIT Digital, Inc.)
Stockholder Representative. (a) In order From and after the Closing Date, Parent shall be entitled to administer efficiently deal exclusively with the implementation Stockholder Representative in respect of this Agreementall notices, disputes and other matters under Article IX, and the waiver Stockholder Representative shall provide copies of any conditions such notices to one Person designated in writing by each Principal Company Stockholder. Parent shall be entitled to rely upon, and shall be fully protected in relying upon, any statements or actions taken by the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement Representative made on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Company Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")hereunder.
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of the The Stockholder Representative shall be effective until Purchaser is given notice of it by have no liability to the Company Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on Parent or the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action actions taken or omitted, decision made or omitted or any instruction by it in its capacity as given or omitted by Stockholder Representative hereunder.
(iiic) In the event that the Company Stockholder Approval is received, effective upon such approval and without any further action by the Company Stockholders, the Company and the Company Stockholders hereby appoint the Stockholder Representative to act as the Company Stockholders’ representative and attorney-in-fact for the purposes and with the powers and exclusive authority hereinafter set forth in this Section 10.2, which shall, subject to Section 9.4, include the sole and exclusive power and authority, and the Stockholder Representative shall provide copies of any such notices to one Person designated in writing by each Principal Company Stockholder:
(i) To execute and deliver in the name, and on behalf, of each Company Stockholder any and all agreements, documents, certificates or other instruments permitted or required to be delivered by the Stockholder Representative or the Company Stockholders pursuant hereto as the Stockholder Representative, in its sole and reasonable discretion, may deem necessary or desirable;
(ii) To collect and receive, directly or through an escrow agent appointed by the Stockholder Representative, all amounts that may be distributed to the Company Stockholders pursuant hereto and to disburse and pay (directly or though such escrow agent) the same, net of any applicable withholding Taxes, to the Company Stockholders in accordance herewith and in this respect the Stockholder Representative shall be deemed entitled to fulfill collect the full amount of any fiduciary obligation payment due to the Company Stockholders so long as no Stockholder is adversely affected hereunder, if any;
(iii) To enforce and protect the rights and interests of the Company Stockholders, in the name, and on behalf, of the Company Stockholders, arising out of or under or in any manner relating to any and all claims for indemnification brought by any action indemnified party under Article IX and, in connection therewith, to (i) assert any claim or institute any action, proceeding or investigation in the name of the Stockholder Representative or, if the Stockholder Representative so elects, in the names of one or more of the Company Stockholders; (ii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Surviving Corporation, Parent or any other Person or by any Governmental Entity against (A) the Stockholder Representative and/or (B) any of the Company Stockholders and receive process on behalf of any or all Company Stockholders in any such claim, action, proceeding or investigation and compromise or settle such claim, action, proceeding or investigation on such terms as the Stockholder Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such claim, action, proceeding or investigation; (iii) file any proofs of debt, claims and petitions as the Stockholder Representative may deem advisable or necessary; (iv) settle or compromise any claims asserted hereunder; and (v) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation in the name of the Stockholder Representative or, if the Stockholder Representative so elects, in the names of one or more of the Company Stockholders;
(iv) To enforce payment of amounts due to the Principal Company Stockholders hereunder (including any amounts payable by the Executing Stockholders and the Non-Executing Stockholders pursuant to the terms hereof), in each case on behalf of the Principal Company Stockholders and each of them, in the name of the Stockholder Representative or, if the Stockholder Representative so elects, in the names of one or more of the Principal Company Stockholders;
(v) To cause to be paid the full amount of any Losses arising out of the indemnification provisions set forth in Article IX, or any amounts payable by the Principal Company Stockholders to a Parent Indemnitee in respect of any compromise or settlement of any claim for indemnification under Section 9.2 agreed to by the Stockholder Representative in its sole discretion or any amounts payable by the Executing Stockholders and the Non-Executing Stockholders pursuant to the terms hereof (including withdrawing Escrow Funds from escrow to pay for such amounts);
(vi) To refrain from enforcing any right of the Principal Company Stockholders or any of them and/or of the Stockholder Representative arising out of or under or in any manner relating to Article IX or any other agreement, instrument or document in connection with the foregoing, it being understood that the Stockholder Representative shall not have any liability for refraining from enforcing any such right other than in the case of gross negligence or willful misconduct; provided, however, that no such failure to act by on the part of the Stockholder Representative shall not be deemed a waiver of any such right or interest by the Stockholder Representative unless such waiver is in a disproportionate measure compared writing signed by the Stockholder Representative; and
(vii) To make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, share powers, letters and other writings, and, in general, to do any other Stockholderand all things and to take any and all action that the Stockholder Representative, in its sole, absolute and reasonable discretion, may consider necessary or proper or convenient in connection with or to carry out clauses (i) through (vi).
(d) Remedies at law The grant of authority provided for breach of in this Section would be inadequate, therefore Purchaser 10.2: (i) is coupled with an interest and shall be entitled irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Company Stockholder; (ii) may be exercised by the Stockholder Representative either by signing separately as representative of each of the Company Stockholders or, after listing all of the Company Stockholders executing an instrument, by the signature of the Stockholder Representative acting in such capacity for all of them; (iii) shall survive the delivery of an assignment by a Company Stockholder of the whole or any fraction of its interest hereunder; and (iv) shall terminate upon the termination of the indemnification obligations of the Stockholder Indemnitors pursuant to injunctive relief, without the necessity of proving damages in an action to enforce this SectionArticle IX.
(e) The provisions In connection with the performance of this Section are independent its rights and severable to constitute an irrevocable power of attorneyobligations hereunder, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative shall have the right at any time and bind executorsfrom time to time to select and engage, heirsat the cost and expense of the Company Stockholders based upon their Pro Rata Interests, successorsattorneys, accountants, investment bankers, advisors, consultants and legal representatives. All reasonable clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Stockholder Representative may deem necessary or desirable from time to time.
(f) The Stockholder Representative shall be entitled to withhold and retain from the funds otherwise distributable to the Company Stockholders or from the Escrow Funds such amount or amounts as shall be sufficient to pay all expenses which are required to be paid or borne by the Company Stockholders pursuant hereto or incurred by the Stockholder Representative in connection with the Stockholder Representative’s performance of his obligations under this Section 10.2.
(g) The Stockholder Representative shall not be entitled to any fee, commission or other compensation for the performance of his services hereunder, but shall be entitled to the payment of all costs, fees and expenses incurred by it pursuant to Sections 10.2(f) hereof.
(h) In dealing with this Agreement and any instruments, agreements or documents relating hereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representative hereunder, (i) the Stockholder Representative assumes and shall incur no responsibility whatsoever (whether to any Company Stockholder, the Surviving Corporation, Parent or any other Person) by reason of any error in judgment or other act or omission performed or omitted in connection herewith or any such other agreement, instrument or document, except responsibility for any act or failure to act which represents willful misconduct or gross negligence, and (ii) the Stockholder Representative shall be paid entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholder Representative pursuant to such advice shall in no event subject the Stockholder Representative to liability to any Company Stockholder, the Surviving Corporation, Parent or any other Person.
(i) Each Company Stockholder shall severally, based on the Pro Rata Interest of such Company Stockholder (and not jointly), hold harmless and indemnify the Stockholder Representative against all damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment(s) against the Stockholder Representative, of any nature whatsoever, arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholder Representative hereunder or otherwise, except to the extent arising out of the willful misconduct or gross negligence of the Stockholder Representative.
(j) In the event the original Stockholder Representative shall be unable or unavailable to perform his duties hereunder, the Stockholder Representative shall appoint a successor Stockholder Representative that shall have all of the authority and responsibilities conferred upon or delegated to the Stockholder Representative pursuant to this Agreement, and each Company Stockholder hereby agrees to the appointment of such successor Stockholder Representative. In the event the Stockholder Representative becomes unwilling to continue in his capacity hereunder, the Stockholder Representative may resign at any time and be discharged from its duties or obligations hereunder by giving a written resignation to the Principal Company Stockholders, specifying the date that such resignation shall take effect; provided, however, that the Stockholder Representative will give not less than ten (10) days’ prior written notice of such resignation and that no such resignation shall become effective until the Stockholder Representative appoints his successor Stockholder Representative and acceptance of such appointment by such successor Stockholder Representative. If the Stockholder Representative is unwilling or unable to appoint a successor, the Principal Company Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Timeshall appoint a successor Stockholder Representative. The provisions hereof successor Stockholder Representative shall survive notify Parent in writing of its appointment as the Effective Timesuccessor Stockholder Representative hereunder.
(k) Notwithstanding anything contained in this Agreement, no Person or Persons other than the Stockholder Representative (and his successors) shall be entitled to exercise any of the rights or powers of the Stockholder Representative hereunder.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreementevent that the Merger is approved, the waiver effective upon such vote, and without further act of any conditions to the obligations to consummate the transactions Escrow Contributor or the settlement of any dispute and notices under this Agreement or actionsCompany Rightholder, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint K▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall be appointed as their representative ("the agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholdersthe Escrow Contributors, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize delivery or payment to Parent of Escrow Cash from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Escrow Contributors from time to time upon not less than thirty (30) days prior written notice to Parent and the Escrow Agent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Upon any change in the Stockholder Representative, such successor Stockholder Representative shall promptly provide the Escrow Agent with a signature specimen. Any vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of the Stockholder Representative shall not receive compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Contributors.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as the Stockholder Representative while acting in good faith. The Escrow Contributors on whose behalf the Escrow Cash was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. After all claims for all purposesLosses by Parent set forth in Officer’s Certificates delivered to the Escrow Agent and the Stockholder Representative have been satisfied, or reserved against, the Stockholder Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Stockholder Representative’s representation hereby.
(c) A decision, act, consent or instruction of the Stockholder Representative pursuant to this Agreement shall be final, binding and conclusive upon the Escrow Contributors and Company Rightholders; howeverand the Escrow Agent and Parent may rely upon any such decision, no change act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Escrow Contributors and Company Rightholders. The Escrow Agent and Parent are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative and the Escrow Agent and Stockholder Representative are hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of Parent.
(d) Subject to Parent’s prior claims against the Escrow Fund, the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreemententitled to receive payment for its reasonable and documented expenses therefrom, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as prior to any actions required or permitted payments to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder RepresentativeContributors.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Tellabs Inc)
Stockholder Representative. (a) In order to administer efficiently By the implementation execution and delivery of this Agreementa Letter of Transmittal, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsincluding counterparts thereof, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation each of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give Stockholders will irrevocably constitute and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fill as the true and lawful agent and attorney-in-fact (the “Stockholder Representative”) of such vacancy Stockholder with full powers of substitution to act in the name, place and be deemed stead of such Stockholder with respect to the performance on behalf of such Stockholder under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Stockholder Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to: (i) act for such Stockholder with respect to the Adjustment Escrow Amount; (ii) amend, modify or waive any provision of this Agreement, the Paying Agent Agreement or the Escrow Agreement in any manner; (iii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Stockholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Stockholder Representative; (iv) act for such Stockholder with respect to all purposesMerger Consideration matters and all Merger Consideration adjustment matters referred to herein; (v) incur any expenses, liquidate and withhold assets received on behalf of such Stockholder prior to their distribution to such Stockholder to the extent of any amount that the Stockholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose, with all such expenses reimbursed to the Stockholder Representative out of amounts received out of the Adjustment Escrow Fund, or if no amounts are received, by reimbursement from the Stockholders in accordance with their Pro Rata Percentage; (vi) receive all notices, communications and deliveries hereunder on behalf of such Stockholder; (vii) do or refrain from doing any further act or deed on behalf of such Stockholder that the Stockholder Representative deems necessary or appropriate, in the sole discretion of the Stockholder Representative, relating to the subject matter hereof as fully and completely as such Stockholder could do if personally present and acting and as though any reference to such Stockholder herein was a reference to the Stockholder Representative; or (viii) direct, authorize or permit the Paying Agent to take any of the foregoing actions; provided, however, that the Stockholder Representative shall have no change obligation to act, except as expressly provided herein.
(b) The appointment of the Stockholder Representative shall be effective until Purchaser is given notice deemed coupled with an interest and shall be irrevocable, and any other Person may conclusively and absolutely rely, without inquiry, upon any action of it by the StockholdersStockholder Representative as the act of each Stockholder in all matters referred to herein.
(c) By mere execution In the event the Stockholder Representative resigns or ceases to function in such capacity for any reason whatsoever, then the successor Stockholder Representative shall be the Person appointed by the Stockholders holding a majority of this Agreement, Stockholders agree that:the Pro Rata Percentages held by all Stockholders.
(id) Purchaser may rely conclusively on the instructions and decisions of The Stockholder Representative as to any actions required or permitted to Reserve shall be taken used by Stockholders or the Stockholder Representative hereunder to satisfy the obligations of the Stockholder Representative set forth herein and to otherwise permit the Stockholder Representative to perform its obligations set forth herein. As soon as practicable after the date on which the final obligation of the Stockholder Representative under this Agreement has been discharged, the Stockholder Representative shall pay to the Paying Agent, which shall be directed to pay the Stockholders in accordance with Section 2.5(a) (or the Stockholder Representative may deliver such amounts directly to the Stockholders if the Paying Agent is no longer engaged or if the Stockholder Representative otherwise so determines) any amounts remaining in the Stockholder Representative Reserve.
(e) In furtherance of its role, the Stockholder Representative shall be entitled to incur such reasonable costs and expenses as the Stockholder Representative may deem appropriate under the Escrow Agreements circumstances, which expenses may include hiring attorneys, accountants, appraisers and no party other professional advisors. Such expenses shall have any cause of action against Purchaser for action taken be reimbursed from the Stockholder Representative Reserve from time to time upon demand by Purchaser in reliance upon actions, decisions or instructions of the Stockholder Representative.
(iif) all actionsNothing in this Agreement, decisionsthe Escrow Agreement or the Paying Agent Agreement is intended, and instructions nothing in this Agreement, the Escrow Agreement or the Paying Agent Agreement shall be interpreted as, imposing upon the Stockholder Representative, solely in its capacity as the agent and attorney-in fact for the Stockholders, any personal liability, personal economic obligation or personal guarantee in favor of the any Party to this Agreement or any third party. The Stockholder Representative shall be conclusive and binding on Stockholders; have no Stockholder shall have a cause of action against Purchaser liability to the Purchaser, the Company or Surviving Corporation for any action the Stockholders with respect to actions taken or omitted, decision made or omitted or any instruction to be taken in its capacity as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Aramark)
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders Company Indemnifying Parties hereby appoint ▇▇▇▇▇ ▇appoints J▇▇▇ ▇▇▇▇▇▇ as their representative ("its agent and attorney-in-fact, as the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition the Company Indemnifying Parties to or obligation to consummate the transactions, give and receive notices and take any communications, to authorize payment to Parent from the Escrow Account in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow Stockholders under courts and awards of arbitrators with respect to such claims, and to take all other actions that are either (i) necessary or appropriate in the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change judgment of the Stockholder Representative shall be effective until Purchaser is given notice for the accomplishment of it the foregoing or (ii) specifically mandated by the Stockholders.
(c) By mere execution terms of this Agreement; provided, Stockholders agree that:
(i) Purchaser may rely conclusively on however, that notwithstanding anything in this Agreement to the instructions and decisions of contrary, the Stockholder Representative as shall have no power or authority to bind any actions required or permitted Company Indemnifying Parties with respect to be taken by Stockholders or Stockholder Representative hereunder and under Losses that are not satisfied from the Escrow Agreements Account. The appointment, rights, powers and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions obligations of the Stockholder Representative shall be conclusive under this Agreement are exclusive, and binding on Stockholders; no Stockholder Company Indemnifying Party shall have a cause of action against Purchaser the right to assert any such right or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative hereunder. Such agency may be changed by the Company Indemnifying Parties from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of not less than a two-thirds interest of the Escrow Account agree to such removal and bind executors, heirs, successorsto the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Account. No bond shall be required of the Stockholder Representative, and legal representatives. All reasonable fees and expenses incurred by the Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.not receive any compensation for its
Appears in 1 contract
Sources: Merger Agreement (Sybase Inc)
Stockholder Representative. (a) In order to administer efficiently Upon the implementation closing of this Agreementthe Merger, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall be constituted and appointed as their representative agent and attorney-in-fact (the "Stockholder Representative") for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition each of the Stockholders and the Principal to or obligation to consummate the transactions, give and receive notices and take any communications, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and demand arbitration and comply with orders of Escrow courts and awards of arbitrators with respect to claims, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed (whether pursuant to vacancy, removal or resignation) by the vote of a majority of the Stockholders under from time to time upon not less than thirty (30) calendar days prior written notice to Parent. No bond shall be required of the Earnout Escrow Agreement Stockholder Representative, and the Indemnity Escrow Agreement (collectivelyStockholder Representative shall receive no compensation for its services, "Escrow Agreements")except for payment by the Stockholders of expenses, including fees of counsel, reasonably incurred by the Stockholder Representative in connection with the performance of its duties hereunder.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith, no change and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholder Representative and hold such agent harmless against any loss, liability or expense incurred without bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder.
(c) A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision of all Stockholders and the Principal and shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreementfinal, Stockholders agree that:
(i) Purchaser binding and conclusive upon each Stockholder and Principal, and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive taken in such manner as being the decision, act, consent or instruction of each and binding on Stockholders; no every Stockholder shall have a cause of action against Purchaser or Surviving Corporation and Principal. Parent is hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Xicor Inc)
Stockholder Representative. (a) In order By their approval of the Merger and adoption of this Agreement and/or their acceptance of any consideration pursuant to administer efficiently the implementation of this Agreement, each Company Equityholder individually appoints the waiver of any conditions to the obligations to consummate Stockholder Representative as its representative, attorney-in-fact and agent in connection with the transactions contemplated by this Agreement. In connection therewith, the Stockholder Representative is authorized to do or refrain from doing all further acts and things, and to execute all such documents as the settlement of Stockholder Representative shall deem necessary or appropriate, and shall have the power and authority to:
(i) act for the Company Equityholders with regard to all matters relating to this Agreement and any Ancillary Document (including the Escrow Agreement);
(ii) act for the Company Equityholders in connection with any dispute and notices under or litigation involving this Agreement or actionsthe transactions contemplated hereby;
(iii) execute and deliver all amendments, settlement waivers, ancillary agreements, certificates and documents that the Stockholder Representative deems necessary or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary appropriate in connection with implementation the consummation of the Agreement transactions contemplated by this Agreement;
(iv) facilitate the disbursement of funds to the Company Equityholders and, with respect to the Stockholder Representative Fund, receive funds, make payments of funds, and give receipts for funds;
(v) do or refrain from doing any further act or deed on behalf of Stockholders, waive any condition the Company Equityholders that the Stockholder Representative deems necessary or appropriate in its discretion relating to or obligation to consummate the transactions, subject matter of this Agreement as fully and completely as the Company Equityholders could do if personally present;
(vi) give and receive all notices and take any and all action contemplated required to be taken given or received by or on behalf of Stockholders the Company Equityholders under this Agreement, and ; and
(vii) receive service of Escrow Stockholders process in connection with any claims under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")this Agreement.
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy All decisions and be deemed Stockholder Representative for all purposes; however, no change of actions by the Stockholder Representative shall be effective until Purchaser is given notice of it by binding upon all Company Equityholders, and no Company Equityholder shall have the Stockholdersright to object, dissent, protest or otherwise contest the same.
(c) By mere execution At the Effective Time, Buyer shall pay the Stockholder Representative Expense Amount to the Stockholder Representative, which Stockholder Representative Expense Amount shall be maintained by the Stockholder Representative in a segregated account. The Stockholder Representative shall be reimbursed for reasonable out-of-pocket expenses incurred in the performance of its duties (including the reasonable fees and expenses of counsel) under this Agreement from the Stockholder Representative Fund and, if such fund is insufficient to pay such expenses, from the first proceeds from Milestone Payments otherwise available for distribution to the Company Equityholders. Upon the determination of the Stockholder Representative that the Stockholder Representative Fund is no longer necessary in connection with any dispute regarding Milestone Payments, the remaining amount, if any, in the Stockholder Representative Fund (the “Stockholder Representative Account Surplus”) shall be paid to the Paying Agent for distribution to the former holders of Company Stock, Vested Company Options and Company Warrants the portion of the Stockholder Representative Account Surplus to which such holders are entitled pursuant to Section 2.1(c), 2.1(d) or 2.1(e), respectively. The Company Equityholders will not receive any interest or earnings on the Stockholder Representative Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Stockholder Representative Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative Fund shall not be used for any other purpose and shall not be available to Buyer to satisfy any claims hereunder.
(d) The Stockholder Representative shall act for the Company Equityholders on all of the matters set forth in this Agreement in the manner the Stockholder Representative believes to be in the best interest of the Company Equityholders. The Stockholder Representative is authorized to act on behalf of the Company Equityholders notwithstanding any dispute or disagreement among the Company Equityholders. In taking any actions as Stockholder Representative, the Stockholder Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Stockholder Representative reasonably believes to be authorized thereunto. The Stockholder Representative may, in all questions arising hereunder, rely on the advice of counsel, and the Stockholder Representative shall not be liable to any of the parties hereto or to any Company Equityholder for anything done, omitted or suffered in good faith by the Stockholder Representative based on such advice. The Stockholder Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Stockholder Representative. The Stockholder Representative shall not have any liability to any of the parties hereto or the Company Equityholders for any act done or omitted hereunder as Stockholder Representative while acting in good faith. The Stockholder Representative shall be indemnified by the Company Equityholders from and against any loss, liability or expense and arising out of or in connection with the acceptance or administration of its duties hereunder, in each case as such loss, liability or expense is suffered or incurred; provided, that in the event that any such loss, liability or expense is finally adjudicated to have been primarily caused by the bad faith of the Stockholder Representative, the Stockholder Representative will reimburse the Company Equityholders the amount of such indemnified loss, liability or expense attributable to such bad faith. Any such claim for indemnification shall be satisfied first from the Stockholder Representative Fund and, if such fund is insufficient to satisfy any such loss, liability or expense, from the first proceeds from Milestone Payments otherwise available for distribution to the Company Equityholders or by a claim against the Company Equityholders (with each Company Equityholder liable for its pro rata share of any such claim, calculated on the basis of the share of any Stockholder Representative Account Surplus to which such Company Equityholder would be entitled).
(e) The Company and Buyer shall provide the Stockholder Representative with (i) reasonable access to relevant information of the Company and Buyer and (ii) reasonable assistance from the Company’s and Buyer’s employees for purposes of evaluating the information provided, and performing its duties and exercising its rights, pursuant to Section 2.7(d); provided, that the Stockholder Representative shall treat confidentially and not disclose any nonpublic information from or about the Company to anyone except (i) in connection with any disputes arising out of or in connection with this Agreement or (ii) where reasonably determined by the Stockholder Representative to be necessary or appropriate for the performance of the Stockholder Representative’s functions pursuant to this Agreement, to individuals that agree to treat such information confidentially.
(f) In the event the Stockholder Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Company Equityholders (acting by a written instrument signed by the Required Stockholders) shall select another representative to fill the vacancy of the Stockholder Representative, and such substituted representative shall be deemed to be the Stockholder Representative for all purposes of this Agreement, Stockholders agree that. The Stockholder Representative may only be removed upon delivery of written notice to Buyer signed by the Required Stockholders.
(g) For all purposes of this Agreement:
(i) Purchaser may Buyer shall be entitled to rely conclusively on the instructions and decisions of the Stockholder Representative as to the settlement of any disputes or claims under this Agreement or any other actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements hereunder, and no party hereunder shall have any cause of action against Purchaser Buyer for any action taken by Purchaser Buyer in reliance upon actionsthe instructions, decisions of or instructions actions of the Stockholder Representative.;
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section 2.7 are independent and severable to constitute an severable, are irrevocable power of attorney, and coupled with an interest and surviving death, granted shall be enforceable notwithstanding any rights or remedies that any Company Equityholder may have in connection with the transactions contemplated by each Stockholder to this Agreement; and
(iii) the Stockholder Representative and bind provisions of this Section 2.7 shall be binding upon the executors, heirs, successorslegal representatives, personal representatives, successor trustees and successors of each Company Equityholder, and legal representatives. All reasonable fees any references in this Agreement to a Company Equityholder shall mean and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion include the successors to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive rights of each applicable Company Equityholder hereunder, whether pursuant to testamentary disposition, the Effective TimeLaws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Illumina Inc)
Stockholder Representative. (a) In order to administer efficiently By executing the implementation Support Agreement, voting in favor of the adoption of this Agreement, the waiver approval of any conditions the principal terms of the Mergers, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the obligations consideration payable in connection with the Mergers, the Company Stockholder shall be deemed to consummate have approved the transactions or designation of, and hereby designates, GGC Services Holdco, Inc. as the settlement Stockholder Representative for all purposes in connection with this Agreement and the agreements ancillary hereto. The Stockholder Representative shall act as the representative of any dispute and notices the Company Stockholder in respect of all matters arising under this Agreement or actionsthe Transaction Agreements, settlement and shall be authorized to act, or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreementrefrain from acting, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him with respect to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated actions to be taken by or on behalf of Stockholders the Company Stockholder or the Stockholder Representative, including to enforce any rights granted to the Company Stockholder hereunder, in each case as the Stockholder Representative believes is necessary or appropriate under this Agreement and the Transaction Agreements, for and on behalf of the Company Stockholder. The Company Stockholder shall be bound by all such actions taken by the Stockholder Representative and the Company Stockholder shall not be permitted to take any such actions. The Stockholder Representative is serving as the Stockholder Representative solely for purposes of administrative convenience, and is not personally liable (except in its capacity as the Company Stockholder hereunder if applicable) for any of the obligations of the Company, any of its Subsidiaries or the Company Stockholder hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Stockholder Representative or the underlying assets of the Stockholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Stockholder. The Stockholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Stockholder Representative of the Stockholder Representative’s duties or the exercise by the Stockholder Representative of the Stockholder Representative’s rights and remedies under this Agreement, any Transaction Agreement or any agreement ancillary hereto, except in the case of its Fraud, bad faith or willful misconduct. No bond shall be required of the Stockholder Representative. The Stockholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of Escrow Stockholders under such counsel, accountants or experts. The Stockholder Representative shall not have any duty to ascertain or to inquire as to the Earnout Escrow performance or observance of any of the terms, covenants or conditions of this Agreement or any Transaction Agreement. Without limiting the generality of the foregoing, the Stockholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Indemnity Escrow Transaction Agreements, and to consent to any amendment hereof or thereof on behalf of the Company Stockholder and its successor. Parent shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Stockholder Representative relating to this Agreement (collectively, "Escrow Agreements")or any Transaction Agreement.
(b) In The Company Stockholder will indemnify and hold harmless the Stockholder Representative from and against any and all liabilities and Losses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and the Transaction Agreement, in each case as such Loss is suffered or incurred; provided that in the event that any such Loss is finally adjudicated to have been directly caused by the Fraud, bad faith, gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative dieswill reimburse the Company Stockholder the amount of such indemnified Loss to the extent attributable to such Fraud, becomes legally incapacitated bad faith, gross negligence or resigns ▇▇▇▇▇▇▇ ▇willful misconduct. ▇▇▇▇▇ shall fill such vacancy and be deemed If not paid directly to the Stockholder Representative for all purposesby the Company Stockholder, any such liabilities or Losses may be recovered by the Stockholder Representative from (i) the Stockholder Representative Expense Holdback Amount and (ii) any other funds that become payable to the Company Stockholder under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholder; howeverprovided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Stockholder from its obligation to promptly pay such liabilities or Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no change event will the Stockholder Representative be required to advance its own funds on behalf of the Company Stockholder or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholder set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The Company Stockholder acknowledges and agrees that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative shall be effective until Purchaser is given notice or the termination of it by the Stockholdersthis Agreement.
(c) By mere execution The Stockholder Representative Expense Holdback Amount will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively Agreement and any agreements ancillary hereto. The Company Stockholder will not receive any interest or earnings on the instructions and decisions of Stockholder Representative as Expense Holdback Amount and irrevocably transfer and assign to any actions required or permitted to be taken by Stockholders or the Stockholder Representative hereunder and under the Escrow Agreements and no party shall any ownership right that they may otherwise have had in any cause such interest or earnings. The Stockholder Representative will not be liable for any loss of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions principal of the Stockholder Representative shall be conclusive and binding on Stockholders; no Expense Holdback Amount other than as a result of its gross negligence or willful misconduct. The Stockholder shall have a cause of action against Purchaser or Surviving Corporation Representative will hold these funds separate from its corporate funds, will not use these funds for any action taken or omitted, decision made or omitted its operating expenses or any instruction other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as given or omitted by practicable following the completion of the Stockholder Representative hereunder.
(iii) Representative’s responsibilities, the Stockholder Representative shall be deemed to fulfill cause (at the Company Stockholder’s expense) the disbursement of any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by remaining balance of the Stockholder Representative Expense Holdback Amount to the Company Stockholder, except in the case of payments to employees or former employees of the Company for which employment tax withholding is required, which such amounts shall be delivered to Parent or the Surviving Corporation and paid through Parent’s or the Surviving Corporation’s payroll processing service or system. For tax purposes, the Stockholder Representative Expense Holdback Amount shall be treated as having been received and voluntarily set aside by the Company Stockholder at the time of Closing. The parties agree that the Stockholder Representative is not acting as a disproportionate measure compared to withholding agent or in any other Stockholdersimilar capacity in connection with the Stockholder Representative Expense Holdback Amount.
(d) Remedies The Stockholder Representative may resign at law for breach any time by giving twenty (20) days’ notice to Parent and the Company Stockholder; provided, however, in the event of this Section would be inadequatethe resignation or removal of the Stockholder Representative, therefore Purchaser a new Stockholder Representative (who shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Parent Common Stock, voting together as a single class (with each such share entitled to injunctive reliefone vote), without then held by the necessity of proving damages in an action to enforce this SectionCompany Stockholder.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently The Company Stockholders by virtue of the implementation approval of this Agreement, the waiver of any conditions (i) shall be deemed to have consented to the obligations deposit of the Escrow Amount into the Escrow Fund pursuant to consummate the terms of the Escrow Agreement, (ii) shall be deemed to have agreed that the Escrow Fund will be subject to the indemnification provisions of Section 9, and (iii) shall be deemed to have irrevocably constituted and appointed the Stockholder Representative (together with his or her permitted successors) as their true and lawful agent and attorney-in-fact to enter into the Escrow Agreement, to enter into any other agreement in connection with the transactions contemplated by this Agreement, to exercise all or any of the settlement of any dispute powers, authority and notices discretion conferred on the Stockholder Representative under this Agreement or actionsany such agreement, settlement to waive or notices under the Earnout Escrow amend any terms and conditions of this Agreement or Indemnity Escrow Agreementany such agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices on their behalf and take any and all action contemplated to be their exclusive representative to the extent of their respective interests in the Escrow Fund with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by this Agreement or any such agreement, including the defense, settlement or compromise of any claim, action or proceeding for which a Parent Indemnified Person may be entitled to indemnification and the Stockholder Representative agrees to act as, and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and is irrevocable. The Stockholder Representative, in connection with its obligations under this Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or on behalf other document believed by it to be genuine and duly authorized, nor for any other action or inaction in the absence of Stockholders his or her own gross negligence or willful misconduct. In all questions arising under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and or any other agreement made in connection with the Indemnity Escrow Agreement (collectivelytransactions contemplated by this Agreement, "Escrow Agreements").
(b) In the event Stockholder Representative diesmay rely on the advice or opinion of counsel, becomes legally incapacitated and for anything done, omitted or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed suffered in good faith by the Stockholder Representative for all purposes; howeverbased on such advice, the Stockholder Representative shall not be liable to any Company Stockholder in its capacity as such. The Stockholder Representative shall have no change duties or responsibilities other than those expressly set forth in this Agreement or the Escrow Agreement. The Stockholder Representative, acting as such under this Agreement, is not charged with knowledge of or any duties or responsibilities under, and shall not be bound by, any other document or agreement, other than the Escrow Agreement. If the Stockholder Representative shall be effective until Purchaser is given notice of it unable or unwilling to serve in such capacity, his or her successor shall be named by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions those persons who held a majority of the Stockholder Representative shares of Company Common Stock, on an as-if converted basis, held by all Company Stockholders immediately prior to the Effective Time and such successor shall be conclusive serve and binding on Stockholders; no Stockholder shall have a cause exercise the powers of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Entremed Inc)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ is hereby appointed as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement date hereof as the agent and attorney-in-fact of the Holders as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Holders to or obligation to consummate the transactions, give and receive notices and communications in connection with this Agreement and related matters, including in connection with claims for indemnification under Section 2.05 and to agree to, negotiate and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Holders from time to time upon not less than ten (10) days prior written notice to the Company; provided, that the Stockholder Representative may not be removed unless a majority of the Holders (as determined by the respective Indemnity Pro Rata Shares) agree in writing to such removal and to the identity of the substituted agent. In the event of a resignation of the Stockholder Representative or other vacancy in the position of the Stockholder Representative, such vacancy may be filled by a majority of the Holders (as determined by the respective Indemnity Pro Rata Shares). No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Holders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as the Stockholder Representative for all purposes; howeverwhile acting in good faith and without gross negligence or willful misconduct. The Holders shall indemnify and defend the Stockholder Representative on a pro rata basis and hold the Stockholder Representative harmless (in each case, no change based on their respective Indemnity Pro Rata Shares) from and against any losses, claims, damages or liabilities, actions or proceedings (whether commenced or threatened) and expenses incurred (collectively, “Liabilities”) without gross negligence, willful misconduct or bad faith on the part of the Stockholder Representative shall be effective until Purchaser is given notice and arising out of it or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including court costs or the fees and expenses of any legal counsel retained by the StockholdersStockholder Representative (“Stockholder Representative Expenses”), in each case as such Stockholder Representative Expense is incurred or suffered; provided, that in the event it is finally adjudicated that a Stockholder Representative Expense or any portion thereof was primarily caused by the bad faith, gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Holders the amount of such indemnified Stockholder Representative Expense attributable to such bad faith, gross negligence of willful misconduct.
(c) By mere execution A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 3.03 hereof, Stockholders agree that:
(i) Purchaser may shall constitute a decision of all the Holders and shall be final, binding and conclusive upon the Holders. The Company is entitled to rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of all the Holders. The Company is hereby relieved from any Liability to any actions required Person for any acts done by the Company in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iid) all actionsAny obligation or election to provide notice, decisionsdocumentation, and instructions information or other form of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser communication in connection with this Agreement to any Holder, Seller or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative Participating Holder shall be deemed satisfied if so provided to fulfill any fiduciary obligation to Stockholders so long as no the Stockholder is adversely affected by any action Representative, in lieu of such Holder, Seller or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequateParticipating Holder, therefore Purchaser and it shall be entitled to injunctive reliefas if such notice, without the necessity documentation, information or other form of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder communication provided to the Stockholder Representative were provided directly and bind executorsconcurrently to such Holder, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Timeor Participating Holder.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation By virtue of their adoption of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby shall irrevocably appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative agent for purposes of this Agreement (the "Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any communications, to authorize delivery to the Stockholders of cash, to object to such deliveries, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises of, and of Escrow Stockholders under the Earnout Escrow demand dispute resolution pursuant to this Agreement and comply with orders of courts and awards of arbitrators with respect to indemnification claims, and to take all actions necessary or appropriate in the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In judgment of the event Stockholder Representative dies, becomes legally incapacitated or resigns for the accomplishment of the foregoing. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇hereby accepts his appointment as the Stockholder Representative. ▇▇▇▇▇ Purchaser shall fill such vacancy and be deemed entitled to deal exclusively with the Stockholder Representative for on all purposes; howevermatters relating to this Agreement, no change and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or reasonably purported to be executed on behalf of any Stockholder by the Stockholder Representative, and on any other action taken or purported to be taken on behalf of any Stockholder by the Stockholder Representative, as fully binding upon such Stockholder. If the Stockholder Representative shall die, become disabled or otherwise be effective until Purchaser is given notice unable to fulfill his responsibilities as agent of it by the Stockholders.
, then the Stockholders shall, within ten (c10) By mere execution days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Purchaser of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions identity of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under such successor. Any such successor shall become the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of "Stockholder Representative.
(ii) all actions, decisions, and instructions of the " If for any reason there is no Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for at any action taken or omittedtime, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) all references herein to the Stockholder Representative shall be deemed to fulfill any fiduciary obligation refer to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by the Stockholders. The Stockholder Representative shall not be responsible for any act done or omitted thereunder as Stockholder Representative while acting in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach good faith and in the exercise of this Section would be inadequate, therefore Purchaser reasonable judgment. The Stockholders shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent jointly and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to severally indemnify the Stockholder Representative and bind executorshold the Stockholder Representative harmless against any loss, heirsliability or expense incurred without gross negligence, successorsbad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, and legal representatives. All including the reasonable fees and expenses incurred of any legal counsel or other professional retained by the Stockholder Representative shall be paid Representative. By virtue of their adoption of this Agreement, the Stockholders hereby agree to pay all reasonable costs and expenses, including those of any legal counsel or other professional retained by Stockholders pro rata the Stockholder Representative, in proportion to their percentage interest in Seller immediately before connection with the Effective Time. The provisions hereof shall survive acceptance and administration of the Effective TimeStockholder Representative's duties hereunder.
Appears in 1 contract
Sources: Merger Agreement (Inforte Corp)
Stockholder Representative. (a) In order By virtue of the approval of the Merger and this Agreement by the requisite vote of the Stockholders or by receiving the benefits thereof, including any consideration payable hereunder, each of the Stockholders shall be deemed to administer efficiently have agreed to appoint Shareholder Representative Services LLC, as of the implementation Closing, as its representative, agent and attorney-in-fact, as the Stockholder Representative for and on behalf of the Stockholders to take all actions in connection with Agreement that are to be taken by the Stockholder Representative, including to amend this Agreement, to waive any provision of this Agreement, the waiver of any conditions to the obligations negotiate payments due pursuant to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsArticle XI, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Parent Indemnified Party from the Escrow Fund in satisfaction of claims by any Parent Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Parent Indemnified Party against any Stockholders or by any such Stockholders against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any such Stockholders, in each case relating to this Agreement or the transactions contemplated hereby, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. The Stockholder Representative may resign at any time, and such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of at least a two-thirds interest of the Escrow Stockholders under Fund agree to such removal and to the Earnout identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Agreement and Fund. In the Indemnity Escrow Agreement event a vacancy in the position of Stockholder Representative exists for fifteen (collectively15) or more days, "Escrow Agreements")Parent shall have the right to petition a court of competent jurisdiction to appoint a replacement Stockholder Representative. No bond shall be required of the Stockholder Representative. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders.
(b) In the event The Stockholder Representative diesrepresents and warrants to Parent that, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change as of the Stockholder Representative shall be effective until Purchaser is given notice Closing, it has the limited liability company power and authority to enter into and perform this Agreement (subject to the laws of it by the Stockholdersagency).
(c) By mere execution Until notified in writing by the Stockholder Representative that it has resigned, or that it has been removed by at least two-thirds in interest of this Agreementthe Escrow Fund, Parent may rely conclusively and act upon the joint directions, instructions and notices of the Stockholder Representative named above.
(d) The Company, the Escrow Participants and the Stockholders agree thateach hereby authorize the Stockholder Representative to:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required Receive all notices or permitted documents given or to be taken by Stockholders or Stockholder Representative hereunder and under given to the Escrow Agreements Participants or the Stockholders pursuant hereto or in connection herewith or therewith and no party shall have to receive and accept services of legal process in connection with any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions suit or instructions of Stockholder Representative.proceeding arising under this Agreement;
(ii) all actions, decisionsEngage counsel, and instructions of such accountants and other advisors and incur such other expenses in connection with this Agreement and the transactions contemplated hereby or thereby as the Stockholder Representative shall be conclusive and binding on Stockholdersmay in its sole discretion deem appropriate; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.and
(iii) Take such action as the Stockholder Representative shall be deemed to fulfill may in its sole discretion deem appropriate in respect of: (A) waiving any fiduciary obligation to Stockholders so long inaccuracies in the representations or warranties of Parent or Sub contained in this Agreement or in any document delivered by Parent or Sub pursuant hereto; (B) taking such other action as no Stockholder is adversely affected by any action or failure to act by the Stockholder Representative are authorized to take under this Agreement; (C) receiving all documents or certificates and making all determinations, in a disproportionate measure compared their capacity as Stockholder Representative, required under this Agreement; and (D) all such actions as may be necessary to carry out any other Stockholder.
(d) Remedies at law of the transactions contemplated by this Agreement, including the defense and/or settlement of any claims for breach which indemnification is sought pursuant to this Article XI and any waiver of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without any obligation of Parent or the necessity of proving damages in an action to enforce this SectionSurviving Corporation.
(e) The Stockholder Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders shall indemnify the Stockholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while the Stockholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions of limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Section Agreement are independent and severable not intended to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder be applicable to the indemnities provided to the Stockholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement, shall constitute a decision of the Stockholders and bind executorsshall be final, heirsbinding and conclusive upon the Stockholders; and Parent may rely upon any such decision, successorsact, and legal representativesconsent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. All reasonable fees and Parent is hereby relieved from any liability to any person for any decision, act, consent or instruction of the Stockholder Representative.
(f) Upon the Closing, the Company will wire $250,000 (the “Expense Fund”) to the Stockholder Representative, which will be used for any expenses incurred by the Stockholder Representative. The Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative shall be paid by Stockholders pro rata any ownership right that they may otherwise have had in proportion to their percentage any such interest in Seller immediately before the Effective Timeor earnings. The provisions hereof shall survive Stockholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the Effective Timeevent of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Stockholders. For U.S Federal income Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing.
Appears in 1 contract
Sources: Merger Agreement
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this AgreementAgreement by the Required Stockholder Vote and/or delivery of a Release to Parent and participation in the Employee Release, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Non-Competition and notices under this Agreement or actionsWaiver Plan, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation each of the Agreement Indemnifying Parties shall be deemed to have agreed to appoint Bessemer Venture Partners VI, LP as its agent and attorney in fact, as the Stockholder Representative for and on behalf of Stockholders, waive any condition the Indemnifying Parties to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to any Indemnified Party from the Holdback in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party, in each case relating to this Agreement or the transactions contemplated hereby and to take any and all action contemplated to be taken other actions that are either (i) necessary or -71- appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the Indemnifying Parties from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds (2/3) interest of the Holdback agree to such removal and to the identity of the substituted representatives. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Holdback. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for while acting in good faith and in the exercise of reasonable judgment. Any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith. The Indemnifying Parties shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any and all purposes; howeverlosses, no change liabilities, claims, damages and expenses incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including reasonable costs of investigating and the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative and the allocated costs of in-house counsel ("STOCKHOLDER REPRESENTATIVE EXPENSES"). The Stockholder Representative shall be effective until Purchaser is given notice entitled to recovery of it by the Stockholders.
(c) By mere execution full amount of this Agreement, Stockholders agree that:
Stockholder Representative Expenses (i) Purchaser may rely conclusively on from the instructions and decisions of Stockholder Representative as Holdback prior to any actions required or permitted distribution from the Holdback to be taken the Indemnifying Parties but after the satisfaction of all claims by Stockholders or Stockholder Representative hereunder Indemnified Parties for Losses and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) if the Holdback is insufficient (after the satisfaction of all actionsclaims by Indemnified Parties for Losses) to fully satisfy the Stockholder Representative Expenses incurred, decisionsthe Stockholder Representative may recover such expenses from the Total Deferred Consideration on a pro rata basis amongst the holders thereof. In no event shall any deduction from the Total Deferred Consideration by the Stockholder Representative pursuant to this SECTION 7.4(b) constitute an event of default under any instrument or agreement or otherwise give rise to any liability on the part of Parent. A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to SECTION 7.3 and instructions SECTION 7.4 hereof, shall constitute a decision of the Indemnifying Parties and shall be final, binding and conclusive upon the Indemnifying Parties; and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause as being the decision, act, consent or instruction of action against Purchaser or Surviving Corporation the Indemnifying Parties. Parent is hereby relieved from any liability to any person for any action taken acts done by it in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Scansoft Inc)
Stockholder Representative. (a) In order to administer efficiently By voting in favor of the implementation adoption of this Agreement, the waiver approval of any conditions the principal terms of the Mergers, and the consummation of the Mergers or participating in the Mergers and receiving the benefits thereof, including the right to receive the obligations consideration payable in connection with the Mergers, each Stockholder shall be deemed to consummate have approved the transactions or designation of, and hereby designates, the settlement Stockholder Representative as the representative, agent and attorney-in-fact for and on behalf of any dispute the Stockholders and notices each Stockholder (i) agrees that all actions taken by the Stockholder Representative under this Agreement or actionsany Ancillary Agreement shall be binding upon such Stockholder and its successors as if expressly confirmed and ratified in writing by such Stockholder, settlement and (ii) waives any and all defenses which may be available to contest, negate or notices disaffirm the action of the Stockholder Representative taken in good faith under the Earnout Escrow this Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("the Ancillary Agreements. The Stockholder Representative") Representative shall take or refrain from taking any and authorize him to take all action actions that they believe are necessary in connection with implementation of the under this Agreement for and on behalf of the Stockholders, waive any condition to or obligation to consummate as fully as each such Stockholder were acting on its own behalf. All actions taken by the transactions, give Stockholder Representative under this Agreement shall be binding upon each Stockholder and receive notices its successors as if expressly confirmed and take any ratified in writing by each of them and all defenses which may be available to any Stockholder to contest, negate or disaffirm the action contemplated to be of the Stockholder Representative taken by or on behalf of Stockholders in good faith under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow or any other Ancillary Agreement (collectively, "Escrow Agreements")are waived.
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change of If the Stockholder Representative shall resign or otherwise be effective until Purchaser is given notice unable to fulfill their responsibilities as representative of it by the Stockholders.
, the Stockholders shall, within ten (c10) By mere execution days after the occurrence of such event, appoint a successor representative and, promptly thereafter, shall notify Buyer of the identity of such successor. Any such successor shall become the “Stockholder Representative” for purposes of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on Agreement and the instructions and decisions of other Ancillary Agreements. If for any reason there is no Stockholder Representative as at any time, all references herein or in any other Ancillary Agreement to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation refer to Stockholders so long as no Stockholder is adversely affected by any action or failure each Stockholder.
(c) The immunities and rights to act by indemnification of the Stockholder Representative in a disproportionate measure compared to shall survive the resignation or removal of the Stockholder Representative and the Closing or any termination of this Agreement and any other StockholderAncillary Agreement. The powers, immunities and rights to indemnification granted to the Stockholder Representative hereunder are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of the respective Stockholder and shall be binding on any successor thereto.
(d) Remedies at law for breach Except in cases of this Section would fraud, intentional misconduct or gross negligence, the Stockholder Representative will have no Liability to any Buyer Party, any Company Party or their respective successors or assigns with respect to actions taken or omitted to be inadequate, therefore Purchaser taken in good faith in their capacity as the Stockholder Representative and shall be entitled to injunctive reliefindemnification and reimbursement from the Stockholders against any loss, without liability, fees or expenses arising out of actions taken or omitted to be taken in good faith in their capacity as the necessity of proving damages in an action to enforce this SectionStockholder Representative.
(e) The provisions of this Section are independent Parent and severable Buyer shall be entitled to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted rely upon any document or other paper delivered by the Stockholder Representative as being authorized by each Stockholder Stockholder, and neither Parent nor Buyer shall be liable to the Stockholder Representative or any Stockholder for any action taken or omitted to be taken by Parent or Buyer based on such reliance. All decisions and bind executorsactions by the Stockholder Representative, heirsincluding any agreement between the Stockholder Representative and Buyer relating to the defense or settlement of any claims for which any Stockholder may be required to indemnify the Buyer Indemnitees pursuant to Section 10, successorsshall be binding upon each Stockholder, and legal representatives. All reasonable fees and expenses incurred by no Stockholder Representative shall be paid by Stockholders pro rata in proportion have the right to their percentage interest in Seller immediately before object, dissent, protest or otherwise contest the Effective Time. The provisions hereof shall survive the Effective Timesame.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute Merger and notices under this Agreement or actionsby the requisite vote of the Stockholders, settlement or notices under each of the Earnout Escrow Agreement or Indemnity Escrow AgreementStockholders shall be deemed to have agreed to appoint Jeffrey R. Beir as its agent and attorney-in-act, Stockholders hereby appoint as the Stockholder R▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill or and on behalf of the Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Funds in satisfaction of claims by any Indemnified Party, to object to such vacancy payments, to agree to, negotiate, enter into settlements and be deemed compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder Representative for or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless during the Escrow Period (and any extension thereof) holders of a two-thirds interest of the Escrow Funds agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Funds. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from the Stockholders.
(b) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of it reasonable judgment. The Stockholders on whose behalf the Escrow Amounts were contributed to the Escrow Funds shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative ("STOCKHOLDER REPRESENTATIVE EXPENSES"). A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to SECTION 8.3 and SECTION 8.4 hereof, shall constitute a decision of the Stockholders and shall be final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative.
(c) By mere execution their approval of this Agreement, the Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill have waived any fiduciary obligation to Stockholders so long as no claims they may have or assert, including those that may arise in the future, against the Stockholder is adversely affected by Representative, and any of its affiliates, for any action or failure to act inaction taken or not taken by the Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequateconnection herewith, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder except to the extent that any such claims arise out of the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative's gross negligence or bad faith.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Documentum Inc)
Stockholder Representative. (a) In order to administer efficiently Each holder of Company Stock, by virtue of the implementation approval and adoption of this Agreement, will, as a specific term of the waiver Merger, be deemed to have irrevocably (a) constituted and appointed, effective as of any conditions the Effective Time, Stichting Depositary Inkef Investment Fund (referred to herein, together with its permitted successors, the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("“Stockholder Representative") ”), as his, her or its true and authorize him to take lawful agent, proxy and attorney-in-fact, for all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders purposes under this Agreement, including the authority to execute and deliver this Agreement on his, her or its behalf, as the Stockholder Representative and exercise all or any of Escrow Stockholders the powers, authority and discretion conferred on the Stockholder Representative under the Earnout Escrow Agreement and the Indemnity Escrow this Agreement (collectively, "Escrow Agreements").
including Article VIII and Article IX) and (b) In with respect to Indemnifying Securityholders, agreed to, and be bound by and comply with, all of the event obligations of the Indemnifying Securityholders set forth herein. The Stockholder Representative diesagrees to act as, becomes legally incapacitated and to undertake the duties and responsibilities of, such agent and attorney-in-fact. This power of attorney is coupled with an interest and, subject to Section 9.1, is irrevocable and shall survive the dissolution, death or resigns ▇▇▇▇▇▇▇ ▇incapacity of each of the stockholders of the Company. ▇▇▇▇▇ shall fill such vacancy The Indemnifying Securityholders will not receive any interest or earnings on the Representative Expense Fund and be deemed irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for all purposes; howeverany loss of principal of the Representative Expense Fund other than as a result of its gross negligence or willful misconduct. Subject to Section 9.1, upon the determination of the Stockholder Representatives that the Representative Expense Fund is no change of longer necessary, the Stockholder Representative shall be effective until Purchaser is given notice deliver to the Exchange Agent for further distribution to the holders of it by Company Preferred Stock or, if applicable, the Stockholders.
holders of Company Common Stock, if following the achievement of the Preferred Liquidation Amount Satisfaction Point (csolely out of the Representative Expense Fund) By mere execution the amount remaining in the Representative Expense Fund after payment of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative’s out-of-pocket expenses incurred in connection with its services as Stockholder Representative. Upon deposit of the Representative shall be conclusive and binding on Stockholders; no Expense Fund with the Stockholder shall have a cause of action against Purchaser or Surviving Corporation Representative, for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative Tax purposes Parent shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action have paid each former holder of Company Preferred Stock its, his or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders her pro rata in proportion to their percentage interest in Seller immediately before share of the Effective Time. The provisions hereof shall survive Representative Expense Amount as part of the Effective Timeconsideration for such Company Stock.
Appears in 1 contract
Sources: Agreement and Plan of Merger (VectivBio Holding AG)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute 14.17.1 Each Stockholder hereby irrevocably authorizes and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint appoints ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative the Stockholder Representative ("the “Stockholder Representative") ”), with full power of substitution and authorize him to take all action necessary resubstitution, as his or its representative in connection with implementation the transactions contemplated by this Agreement.
14.17.2 By virtue of the approval of the Merger and adoption of this Agreement on behalf of by the Stockholders, waive any condition each Stockholder (other than such Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware law) agrees that the Stockholder Representative shall have the full power, authority and right to or obligation to consummate the transactionsperform, give and receive notices do and take any and all action actions he deems necessary or advisable to carry out the purposes of this Agreement and the transactions contemplated hereby all without liability to such Stockholder, so long as same are carried out by the Stockholder Representative in good faith. Such actions include the power to amend, modify or waive any agreement in the name of each Stockholder as if such Stockholder had himself amended, modified or waived such agreement; provided that the Stockholder Representative shall have no power (the “Limitations”) to alter any term of this Agreement which would (a) increase the scope of his powers, (b) reduce the amount or change the type of Merger Consideration to be taken received by any Stockholder unless a majority of the Stockholders shall so agree or (c) change the terms of a provision that provides rights to a specific Stockholder for purposes of compliance with the Investment Company Act of 1940. In particular, but not by way of limitation, the Stockholder Representative shall have the power to make and carry out decisions under this Agreement or in furtherance of the Transactions on behalf of Stockholders under this Agreement, each Stockholder and to sign documents and make filings on behalf of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")each Stockholder as if such Stockholder had himself or itself signed or filed such document.
(b) In 14.17.3 The Stockholders shall, severally and not jointly, indemnify the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed hold the Stockholder Representative for all purposes; howeverharmless against any loss, no change liability or expense incurred on the part of the Stockholder Representative (so long as the Stockholder’s Representative was acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Stockholder Representative duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative (the “Stockholder Representative Expenses”). The Stockholder Representative shall be effective until Purchaser able to recover any Stockholder Representative Expenses first from the Representative Reimbursement Amount and then from the Escrow Release Amount and any Earnout Payment that is given notice made to the Stockholders, by setting off such Stockholder Representative Expenses against any of it by such amounts that are required to be paid to the Stockholders pursuant to the Escrow Agreement. In the absence of available funds from the Representative Reimbursement Amount, the Escrow Release Amount or an Earnout Payment to the Stockholders, each Stockholders shall severally indemnify the Stockholder Representative for any Stockholder Representative Expenses based on its Pro Rata Share. A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this Agreement (subject to the Limitations) shall constitute a decision of the Stockholders and shall be final, binding and conclusive upon the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of 14.17.4 The Stockholder Representative as to may resign at any actions required or permitted to be taken by Stockholders or time. Upon such resignation, each Stockholder hereby authorizes the Stockholder Representative hereunder to appoint a new Stockholder Representative to replace such resigning Stockholder Representative with the same powers and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of duties as such resigning Stockholder Representative.
(ii) all actions, decisions, and instructions of 14.17.5 If the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given successor shall die, or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure become unable to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to as the Stockholder Representative and bind executorsRepresentative, heirs, successors, and legal representatives. All reasonable fees and expenses incurred a replacement shall promptly be appointed by Stockholder Representative shall be paid a writing signed by Stockholders pro rata in proportion to their percentage interest in Seller immediately before who received a majority of the Effective Time. The provisions hereof shall survive the Effective TimeMerger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Icad Inc)
Stockholder Representative. (a) Each stockholder of the Company hereby designates DFW Capital Partners, L.P., a Delaware limited partnership, as his, her or its representative (the “Stockholder 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 Stockholder Representative on their behalf under or otherwise relating to this Agreement, the Escrow Agreement and the Parent Subordinated Note (if any) and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them. The Stockholder Representative shall not be liable to the holders of Company Stock for any act done or omitted to be done as Stockholder Representative absent bad faith or gross negligence. In order the event the Stockholder Representative is unable or unwilling to administer efficiently serve or shall resign, a successor Stockholder Representative shall be selected by a majority-in-interest of the implementation Stockholders (on a fully-diluted basis) as of immediately prior to the Closing. Each successor Stockholder Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholder Representative.
(b) Parent and Merger Sub shall be entitled to rely upon any communication or writings given or executed by the Stockholder Representative on 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 Stockholder Representative, and any communication or writing so sent shall be deemed notice to all of the holders of Company Stock hereunder. The adoption and approval of this Agreement by the holders of Company Stock shall constitute the consent and agreement of each holder of Company Stock that Stockholder Representative is authorized to accept payments and deliveries, including any notice, on behalf of each holder of Company Stock pursuant hereto.
(c) The Stockholder Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each holder of Company Stock, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement Parent Subordinated Note (collectively, "Escrow Agreements").
(bif any) In in the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change absolute discretion of the Stockholder Representative shall be effective until Purchaser is given notice of it 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 the Stockholders.
(c) By mere execution of or deemed advisable in connection with this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on including without limitation Article IX hereof. This power of attorney and all authority hereby conferred is granted subject to the instructions and decisions interest of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative the holders of Company Stock hereunder and under in consideration of the Escrow Agreements mutual covenants and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisionsagreements made herein, and instructions of the Stockholder Representative shall be conclusive irrevocable and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall not be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected terminated by any action act of any holder of Company Stock, by operation of law, whether by the death or failure to act disability of such holder of Company Stock, or by Stockholder Representative in a disproportionate measure compared to any other Stockholderevent.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In The Stockholder Representative (x) shall hold the Stockholder Representative Expenses Holdback Amount in an account segregated from its corporate funds, (y) shall use the Stockholder Representative Expenses Holdback Amount solely for the purposes set forth in this Section 11.5 and not for its operating expenses or any other corporate purposes, and (z) shall not voluntarily make any portion of the Stockholder Representative Expenses Holdback Amount available to its creditors in the event of bankruptcy. The Holders will not receive any interest or earnings on the Stockholder Representative Expenses Holdback Amount and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Stockholder Representative Expenses Holdback Amount other than as a result of its gross negligence or willful misconduct. The Stockholder Representative shall have the right to recover from the Stockholder Representative Expenses Holdback Amount, prior to any distribution to the Holders, the Stockholder Representative’s out-of-pocket expenses incurred in the performance of its duties under this Agreement and the agreements ancillary hereto (“Charges”), including, without limitation, costs and expenses resulting from the employment of financial advisors, attorneys, auditors and other advisors and agents assisting in the assessment of arbitration, litigation and settlement of any disputes arising under this Agreement, the Escrow Agreement or the Paying Agent Agreement. Upon (i) the completion of the Stockholder Representative’s responsibilities, (ii) the disbursement of all of the Escrow Funds, (iii) final resolution of all disputes arising under this Agreement, the Escrow Agreement or the Paying Agent Agreement and (iv) full reimbursement of all Charges of the Stockholder Representative as provided herein, the Stockholder Representative shall distribute any remaining portion of the Stockholder Representative Expenses Holdback Amount (the “Holdback Distribution Amount”) to the Paying Agent for further distribution to the Holders in accordance with their respective Pro Rata Shares; provided that any Holdback Distribution Amount corresponding to any Dissenting Shares or any Company Shares or Company Preferred Shares with respect to which the Holders thereof have not claimed payment of the Per Share Merger Consideration in accordance with Section 5.8(b) prior to the termination of the Closing Payment Fund pursuant to Section 5.8(d) shall be paid to the Surviving Corporation. For tax purposes, the Stockholder Representative Expenses Holdback Amount will be treated as having been received and voluntarily set aside by the Holders at the time of Closing.
(b) The Stockholder Representative shall have the right to enforce and protect the rights and interests of the Holders arising out of or in any manner relating to this Agreement and each other agreement, document, instrument or certificate referred to herein or the transactions provided for herein, and to take any and all actions which the Stockholder Representative believes are necessary or appropriate under this Agreement to enforce and protect such rights of the Holders, including asserting or pursuing any claim against Parent or the Surviving Corporation. Parent and the Surviving Corporation shall not have the right to object to, dissent from, protest or otherwise contest the authority or power of the Stockholder Representative to so act in accordance with the terms of this Agreement. The Stockholder Representative shall act as it believes to be in the best interests of the Holders. The Stockholder Representative may resign at any time. If the Stockholder Representative shall resign or be removed by the Holders, the Holders shall (by consent of those Persons entitled to at least a majority of the Aggregate Merger Consideration), within ten (10) days after such resignation or removal, appoint a successor to the Stockholder Representative. Any such successor shall succeed the former Stockholder Representative as the Stockholder Representative hereunder.
(c) The Stockholder Representative hereby represents and warrants to Parent, Merger Sub and the Company that: (i) the Stockholder Representative is a legal entity, validly existing and, in all material respects, in good standing under the Laws of its jurisdiction of organization, (ii) the Stockholder Representative has all requisite limited liability company authority and has taken all limited liability company action necessary in order to administer efficiently execute and deliver this Agreement, the implementation Escrow Agreement and the Paying Agent Agreement and to perform its obligations thereunder, subject to the laws of agency, (iii) this Agreement has been, and the Escrow Agreement and the Paying Agent Agreement will be, duly executed and delivered by the Stockholder Representative and, assuming the valid execution and delivery by all counterparties hereto, constitutes or, in the case of the Escrow Agreement and the Paying Agent Agreement, will constitute, a valid and binding obligation of the Stockholder Representative, enforceable against the Stockholder Representative in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law), and (iv) the execution, delivery and performance by the Stockholder Representative of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Paying Agent Agreement (collectivelydoes not and will not constitute or result in a breach or violation of, "Escrow Agreements").
(b) In or a default under, the event Stockholder Representative dies, becomes legally incapacitated certificate of incorporation or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change the bylaws or the comparable governing instruments of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iid) all actionsFor purposes of this Agreement, decisionseach Holder, without any further action on the part of such Holder, by virtue of such Holder’s approval of the Merger, execution and instructions delivery of a Letter of Transmittal, and/or acceptance of any consideration pursuant to this Agreement, shall be deemed to have consented to the appointment of the Stockholder Representative as of the Effective Time as the representative, agent and attorney-in-fact for and on behalf of each such Holder, and the granting to the Stockholder Representative the full power and authority to represent all of the Holders with respect to all matters arising under this Agreement, the Escrow Agreement, the Paying Agent Agreement and any other agreements ancillary hereto in the sole discretion of the Stockholder Representative, and to do all things and to perform all acts on behalf of the Holders, including waiving rights, discharging liabilities and obligations, settling disputes and actions, making decisions relating to the adjustments to the Merger Consideration Adjustment Amount pursuant to this Agreement, and the disbursement of the Escrow Funds (or any portion thereof) in accordance with this Agreement and the Escrow Agreement, and executing and delivering all agreements, certificates, receipts, notices, instructions and other instruments contemplated by, or deemed advisable in connection with, this Agreement and the transactions contemplated hereby. All actions taken by the Stockholder Representative hereunder shall be conclusive and binding on Stockholders; no each of the Holders as if expressly confirmed and ratified in writing by each of the Holders. Without limiting the generality of the foregoing, the Stockholder Representative shall have a cause full power and authority on behalf of action against Purchaser all of the Holders (i) to interpret all of the terms and provisions of this Agreement, the Escrow Agreement and the Paying Agent Agreement, (ii) to the extent expressly provided for in this Agreement, the Escrow Agreement and the Paying Agent Agreement, to negotiate and settle disputes arising under, or Surviving Corporation for any action taken or omittedrelating to, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
this Agreement, the Escrow Agreement and the Paying Agent Agreement, (iii) to the extent expressly provided for in this Agreement, to direct the Paying Agent to disburse to the Holders any funds received on behalf of the Holders under this Agreement or otherwise, (iv) to give all approvals and take any other actions with respect to the Holders in connection with the subject matter of this Agreement, the Escrow Agreement and the Paying Agent Agreement, or (v) after the Effective Time, to consent to any amendment to this Agreement, the Escrow Agreement or the Paying Agent Agreement. Any and all decisions and actions by the Stockholder Representative shall be deemed binding upon all of the Holders, and each Holder waives the right to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action object, dissent, protest or failure to act by otherwise contest the same. Parent, Merger Sub (before the Effective Time), and the Surviving Corporation (after the Effective Time) may deal solely with and rely solely on the Stockholder Representative in a disproportionate measure compared to any other Stockholder.
as the representative of all of the Holders. Parent, Merger Sub (dbefore the Effective Time), and the Surviving Corporation (after the Effective Time) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive reliefrely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Stockholder Representative, without and on any other action taken or purported to be taken on behalf of any Holder by the necessity Stockholder Representative, as fully binding on such Holder. This power of proving damages attorney and all authority hereby conferred is granted in an action to enforce this Sectionconsideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any one or more Holders or by operation of Law, whether by death or other event.
(e) In the event of any pending or threatened action, claim, dispute or other proceeding related to this Agreement, with respect to any information that the Stockholder Representative may share with the Holders, the Stockholder Representative and such Holders will have a commonality of interest with respect thereto and agree that it is their intention and understanding that sharing of information will not waive or diminish the continued protection of the attorney-client privilege, the work product doctrine or any other applicable privilege or doctrine.
(f) The Stockholder Representative will incur no liability of any kind with respect to any action or omission by the Stockholder Representative in connection with the Stockholder Representative’s services pursuant to this Agreement and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholder Representative’s gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Holders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Holders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Holders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Expenses Holdback Amount and (ii) any other funds that become payable to the Holders under this Agreement at such time as such amounts would otherwise be distributable to the Holders; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Holders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(g) The provisions of this Section 11.5 are independent and severable intended to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to be for the Stockholder Representative and bind executors, heirs, successorsbenefit of, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before enforceable by, the Effective Time. The provisions hereof shall survive the Effective TimeHolders, who are intended third party beneficiaries hereof.
Appears in 1 contract
Sources: Agreement and Plan of Merger (KAR Auction Services, Inc.)
Stockholder Representative. (a) In order Each Stockholder by acceptance of its portion of the Merger Shares shall be deemed to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute have designated and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇▇▇ as the alternate in the event that ▇▇. ▇▇▇▇▇▇▇ shall fill is unable to serve) with full power of substitution (the "Stockholder Representative") as the representative of any such vacancy Stockholder to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by the Stockholders and be deemed Stockholder Representative for all purposes; however, no change of hereby acknowledges that the Stockholder Representative shall be effective until Purchaser is given notice of it the only person authorized to take any action so required, authorized or contemplated by this Agreement by any Stockholder including the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on all agreements and certificates referenced herein. Each Stockholder is thereby deemed to have further acknowledged that the instructions foregoing appointment and decisions of Stockholder Representative as to any actions required or permitted designation shall be deemed to be taken by Stockholders coupled with an interest and shall survive the death or incapacity of such Stockholder. Each Stockholder Representative hereunder and under is thereby deemed to have authorized the Escrow Agreements and no party shall have other parties hereto to disregard any cause of action against Purchaser for notice or other action taken by Purchaser in reliance upon actions, decisions or instructions of each Stockholder pursuant to this Agreement except for the Stockholder Representative.
(ii) . The other parties hereto are and will be entitled to rely on any action so taken or any notice given by the Stockholder Representative and are and will be entitled and authorized to give notices only to the Stockholder Representative for any notice contemplated by this Agreement to be given to any such Stockholder. By the acceptance of its portion of the Merger Shares, each Stockholder shall be deemed to have waived any and all actionsclaims that they may have or assert, decisionsincluding those that may arise in the future, and instructions against the Stockholder Representative for any action or inaction taken or not taken by the Stockholder Representative in connection with his service as the Stockholder Representative, except in the case of the Stockholder Representative's own bad faith or willful misconduct. In consideration of his agreement to serve as the Stockholder Representative, the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation released from any liability for any action or inaction taken or omittednot taken in his capacity as the Stockholder Representative, decision made except in the case of the Stockholder Representative's own bad faith or omitted or any instruction as given or omitted by willful misconduct. By the acceptance of its portion of the Merger Shares, each Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without have agreed that the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent reasonable and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable customary fees and expenses incurred by the Stockholder Representative in the exercise of his right or the performance of his duties hereunder (including reasonable attorneys' fees and expenses and the fees and expenses of accountants and other experts) shall be paid borne by the Stockholders based on their pro rata in proportion portion of the Escrow Shares, and each Stockholder agrees to their percentage interest in Seller immediately before promptly reimburse the Effective Time. The provisions hereof shall survive the Effective TimeStockholder Representative with respect to such amounts.
Appears in 1 contract
Sources: Merger Agreement (Goamerica Inc)
Stockholder Representative. (a) In order Shareholder Representative Services LLC has been or will be appointed as the agent and attorney-in-fact for each Stockholder (such person, and any successor or replacement thereof as provided below, the “Stockholder Representative”) pursuant to administer efficiently the implementation Letter of Transmittal. The Stockholder Representative shall be authorized, for and on behalf of all the Stockholders, to sign this Agreement, the waiver Escrow Agreements and bind the Stockholders in respect of any conditions to the obligations to consummate the transactions or the settlement of any dispute each provision hereof and notices under this Agreement or actionsthereof. The Stockholder Representative shall also be authorized, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of all the Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated communications, to be taken authorize: (i) the payment of monies by or the Stockholders, (ii) the distribution to Alarm of monies from the Escrow Agreement, in each case in satisfaction of claims for Losses by Alarm on behalf of Stockholders under this Agreementthe Alarm Indemnified Parties, and to object to such distributions, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration or resolution by the Accounting Referee and comply with orders of Escrow courts and awards of arbitrators and/or the Accounting Referee with respect to the consideration adjustment pursuant to Section 2.3 and claims for Losses, as applicable, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative to accomplish the foregoing. The Stockholder Representative may be changed by the holders of a majority of shares of Common Stock outstanding on an as converted basis immediately prior to the Closing (the “Majority Stockholders”) and from time to time upon not less than ten (10) days’ prior written notice to Alarm certifying that the Stockholder Representative has been removed by the requisite vote or consent of the Stockholders under and specifying the Earnout Escrow Agreement and substitute Stockholder Representative appointed by the Indemnity Escrow Agreement (collectivelyStockholders. The Stockholder Representative may resign at any time. Following the Closing, "Escrow Agreements")notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder or under the Escrow Agreement in its capacity as the Stockholder Representative for all purposes; however, no change while acting in good faith without gross negligence or willful misconduct or upon the advice of legal counsel. The Stockholders shall jointly and severally indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any Losses incurred by the Stockholder Representative (including reasonable fees and expenses of any legal counsel retained by the Stockholder Representative) arising out of or in connection with the acceptance or administration of the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required Representative’s duties hereunder or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall Agreement, in each case as such Loss is suffered or incurred; provided, that in the event that any such Loss is finally adjudicated to have any cause of action against Purchaser for action taken been primarily caused by Purchaser in reliance upon actionsthe gross negligence, decisions willful misconduct or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions bad faith of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omittedRepresentative, decision made or omitted or any instruction as given or omitted by the Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed will reimburse the Stockholders the amount of such indemnified Loss attributable to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action such gross negligence, willful misconduct or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder bad faith. If not paid directly to the Stockholder Representative and bind executorsby the Stockholders, heirs, successors, and legal representatives. All reasonable fees and expenses incurred any such Losses may be recovered by the Stockholder Representative shall from the Stockholder Representative Fund. To the extent the Stockholder Representative Fund has been exhausted, such Losses may be paid by recoverable with the prior written consent of the Majority Stockholders pro rata in proportion to their percentage interest in Seller immediately before from (i) the Effective Time. The provisions hereof shall survive the Effective Time.Escrow Amount at such time as remaining
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation adoption of this AgreementAgreement and approval of the Merger by the Stockholders, and by receiving the waiver benefits thereof, including any consideration payable hereunder, each of any conditions the Indemnifying Parties shall be deemed to have agreed to appoint Shareholder Representative Services LLC, as of the obligations to consummate Closing, as its representative, agent, attorney-in-fact and as the transactions or Stockholder Representative for and on behalf of the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take Indemnifying Parties for all action necessary purposes in connection with implementation of the this Agreement on behalf of Stockholders, waive any condition and ancillary agreements hereto including to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf communications in respect of Stockholders indemnification claims under this Agreement, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of Escrow courts and awards of arbitrators with respect to any such indemnification claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any such indemnification claim by any Indemnified Party hereunder against any Indemnifying Party or by any such Indemnifying Party against any Indemnified Party or any dispute between any Indemnified Party and any such Indemnifying Party, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) permitted or specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders under from time to time upon not less than thirty (30) days prior written notice to Parent. Notwithstanding the Earnout Escrow Agreement and foregoing, in the Indemnity Escrow Agreement (collectivelyevent of a resignation of the Stockholder Representative or other vacancy in the position of Stockholder Representative, "Escrow Agreements")such vacancy may be filled by a majority of the Stockholders. No bond shall be required of the Stockholder Representative. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties.
(b) In the event Stockholder Representative diesA decision, becomes legally incapacitated act, consent or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed Stockholder Representative for all purposes; however, no change instruction of the Stockholder Representative on behalf of the Stockholders, including an amendment of any provision of this Agreement pursuant to Section 8.2 hereof, shall constitute a decision of the Indemnifying Parties and shall be effective until Purchaser final, binding and conclusive upon the Indemnifying Parties, and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. Parent is given notice hereby relieved from any liability to any person for any acts done by Parent in accordance with such decision, act, consent or instruction of it by the StockholdersStockholder Representative.
(c) By mere execution The Stockholder Representative will incur no liability in connection with its services pursuant to this Agreement and any Related Agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Indemnifying Parties shall indemnify the Stockholder Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Stockholder Representative Expenses”) arising out of or in connection with this Agreement and any Related Agreements, in each case as such Stockholder Representative Expense is suffered or incurred; provided, that in the event that any such Stockholder Representative Expenses is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Indemnifying Parties the amount of such indemnified Stockholder Representative Expenses to the extent attributable to such gross negligence or willful misconduct. Stockholder Representative Expenses may be recovered by the Stockholder Representative from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Indemnifying Parties under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while the Stockholder Representative may be paid from the aforementioned sources of funds, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Stockholder Representative Expenses as they are suffered or incurred. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Indemnifying Parties or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Indemnifying Parties set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement, Stockholders agree that:
(i) Purchaser . The Parent may rely conclusively on upon any decision, act, consent or instruction of the instructions and decisions of Stockholder Representative as being the decision, act, consent or instruction of the Indemnifying Parties. The Parent is hereby relieved from any liability to any actions required person for any acts done by it in accordance with such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under instruction of the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequateAt or immediately prior to the Closing, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder Company will wire to the Stockholder Representative $250,000 (the “Expense Fund”) which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any Stockholder Representative Expenses incurred pursuant to this Agreement and bind executorsany related agreements. The Stockholder Representative is not providing any investment supervision, heirs, successorsrecommendations or advice and shall have no responsibility or liability for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund, and legal representativeshas no tax reporting, withholding or income distribution obligations. All reasonable fees The Indemnifying Parties will not receive any interest or earnings on the Expense Fund and expenses incurred by irrevocably transfer and assign to the Stockholder Representative shall be paid by Stockholders pro rata any ownership right that they may otherwise have had in proportion to their percentage any such interest in Seller immediately before the Effective Timeor earnings. The provisions hereof shall survive Stockholder Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the Effective Timeevent of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Indemnifying Parties. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Indemnifying Parties at the time of Closing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Otonomo Technologies Ltd.)
Stockholder Representative. (a) In order to administer efficiently Upon the implementation adoption of this AgreementAgreement and the approval of the Merger and the transactions contemplated hereby by the Company Stockholders, effective at the waiver Effective Time, and without further act of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actionsCompany Stockholder, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall be appointed as their representative ("the Stockholder Representative") Representative and authorize him to take all action necessary in connection with implementation of as the Agreement agent and attorney-in-fact for and on behalf of Stockholders, waive any condition each Company Stockholder to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement. Such agency may be changed by the former Company Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and of Escrow Stockholders under the Earnout Escrow Agreement and Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall constitute notice to or from the former Company Stockholders.
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as Stockholder Representative for all purposes; howeverwhile acting in good faith. The former Company Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. At the time of distribution pursuant to Sections 1.9 and 7.3(c) to the former Company Stockholders of any proceeds remaining in the Escrow Fund, to the extent that any distribution out of the Escrow Fund to the former Company Stockholders includes amounts representing income and gains earned with respect to the Escrow Fund or that would represent Earn-Out Payments, the Stockholder Representative shall be effective until Purchaser is given notice entitled to deduct and withhold from such income and gains included in such distribution or that would represent Earn-Out Payment amounts to pay and reimburse fees and expenses incurred or expected to be incurred in connection with his role as Stockholder Representative pursuant to this Agreement; provided, however, that the Stockholder Representative shall not be entitled to deduct and withhold any such amounts in excess of it by $500,000 in the Stockholdersaggregate.
(c) By mere execution A decision, act, consent or instruction of the Stockholder Representative, including an amendment, extension or waiver of this AgreementAgreement pursuant to Section 8.3 and Section 8.4, shall constitute a decision of the former Company Stockholders agree that:
(i) Purchaser and shall be final, binding and conclusive upon the former Company Stockholders; and the Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the former Company Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreementevent that the Merger is approved, the waiver effective upon such vote, and without further act of any conditions to the obligations to consummate the transactions Stockholder or the settlement of any dispute and notices under this Agreement or actionsPreferred Stockholder, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ shall be appointed as their representative agent and attorney-in-fact (the "Stockholder Representative") for each Stockholder or Preferred ----------------------------- Stockholder, for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholdersthe Stockholders or Preferred Stockholder, waive any condition to or obligation to consummate the transactions, give and receive notices and take any communications, to authorize delivery of Parent of shares of Parent Common Stock from the General Escrow Fund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and all action contemplated to be taken by or on behalf of Stockholders under this Agreementcompromises 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 Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders and Preferred Stockholder from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a majority in interest in the General Escrow Stockholders under Fund agree to such removal and to the Earnout identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest in the General Escrow Agreement Fund. No bond shall be required of the Stockholder Representative, and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Stockholder Representative shall not receive compensation for his or her services. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Stockholders and Preferred Stockholders.
(b) In the event The Stockholder Representative diesshall not be liable for any act done or omitted hereunder as Stockholder Representative, becomes legally incapacitated except due to such person's gross negligence or resigns ▇▇▇▇▇▇▇ ▇bad faith. ▇▇▇▇▇ The Stockholders and Preferred Stockholder on whose behalf the General Escrow Amount was contributed to the General Escrow Fund shall fill such vacancy and be deemed severally indemnify the Stockholder Representative for all purposes; howeverand hold the Stockholder Representative harmless against any loss, no change liability or expense incurred without gross negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative.
(c) A decision act, consent or instruction of the Stockholder Representative shall constitute a decision of all Stockholders and Preferred Stockholders for whom a portion of the General Escrow Amount otherwise issuable to them is deposited in the General Escrow Fund and shall be effective until Purchaser is given notice final, binding and conclusive upon each of it by such Stockholders and Preferred Stockholders, and the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser Escrow Agent and Parent may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of each and binding on Stockholders; no every such Stockholder shall have a cause of action against Purchaser or Surviving Corporation Preferred Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently Upon the implementation approval by the Stockholders of the Company of the Merger and this Agreement, the waiver and without further action of any conditions Stockholder, ISH shall be appointed as the Stockholder Representative. The Stockholder Representative shall have the authority, for and on behalf of the Stockholders of the Company (except for such Stockholders, if any, who have perfected their appraisal rights under Delaware law), to take such actions and exercise such discretion as are required of the Stockholder Representative pursuant to the obligations terms of this Agreement and any related document or instrument, and any such actions shall be binding on each Stockholder including without limitation the following:
(i) to consummate the transactions or the settlement of any dispute give and receive communications and notices on behalf of the Stockholders after the Effective Time;
(ii) to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to claims against Stockholders;
(iii) to negotiate, agree to, enter into settlements and compromises of, and comply with orders and awards of courts with respect to any claims of disputes related to this Agreement;
(iv) to receive payments on behalf of the Stockholders due and owing pursuant to this Agreement and acknowledge receipt thereof;
(v) to waive any breach or default of Parent or Merger Sub under this Agreement following the Effective Time;
(vi) to receive service of process on behalf of the Stockholders in connection with any claims under this Agreement or actions, settlement any related document or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative instrument; and
("Stockholder Representative"vii) and authorize him to take all action actions necessary or appropriate in connection with implementation the judgment of the Agreement on behalf of Stockholders, waive any condition Stockholder Representative to or obligation to consummate accomplish the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")foregoing.
(b) In the event The Stockholder Representative diesshall not be liable for any act done or omitted hereunder as Stockholder Representative except as set forth herein. By Stockholders' approval of the this Agreement, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ each Stockholder shall fill such vacancy have and shall be deemed to have agreed that the Stockholders shall indemnify and hold harmless the Stockholder Representative and its partners, stockholders, Affiliates, directors, officers, fiduciaries, employees and agents and each of the partners, stockholders, Affiliates, directors, officers, fiduciaries, employees and agents of each of the foregoing (each a "Representative Indemnified Party") from and against all losses, liabilities, claims or expenses incurred or suffered by the Representative Indemnified Parties as a result of, or arising out of, or relating to any and all actions taken or omitted to be taken by the Stockholders' Representative under this Agreement or in connection with the incurrence, payment, discharge or settlement of any of the obligations of the Stockholders, except for all purposes; howeverany such losses, no change liabilities, claims or expenses that arise on account of the Stockholder Representative's gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final adjudication. None of the Representative Indemnified Parties shall be liable to any Stockholder in respect of such arrangements or actions or omissions in connection therewith, except to the extent that such acts or omissions constitute gross negligence or willful misconduct. A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision for all of the Stockholders hereunder and shall be effective until Purchaser is given notice final, binding and conclusive upon each of it by the such Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser and Parent and Merger Sub may rely conclusively on the instructions and decisions of Stockholder Representative as to upon any actions required such decision, act, consent or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of such Stockholder of the Company. Parent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Merger Sub are hereby relieved from any liability to any Person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by of the Stockholder Representative hereunder.
(iii) Representative. The Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive reliefreimbursement from the Stockholders of any and all fees, without expenses and costs incurred in the necessity performance of proving damages in an action such Stockholder Representative's duties hereunder. If ISH becomes unable to enforce this Section.
(e) The provisions serve as Stockholder Representative, such other Person or Persons may be designated by the holders of this Section are independent a majority of the Shares, and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to such Person or Persons shall succeed as the Stockholder Representative and bind executors, heirs, successors, and legal representativesRepresentative. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ** 49
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(bi) In the event Stockholder Representative diesthat the Merger is approved, becomes legally incapacitated or resigns effective upon such vote, and without further act of any stockholder, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill be appointed as agent and attorney-in-fact (the "Stockholder Representative") for each Company Stockholder, for and on behalf of such vacancy Company Stockholders of the Company, to give and be deemed Stockholder Representative for receive notices and communications, to authorize delivery to Parent of payments from the Escrow Fund in satisfaction of claims by Parent, 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 purposes; however, no change actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the stockholders of the Company from time to time upon not less than thirty (30) days prior written notice to Parent; provided that the Stockholder Representative may not be removed unless a majority-in-interest of the Company Stockholders agree to such removal and to the identity of the substituted agent. No bond shall be effective until Purchaser is given notice required of it by the Stockholders.
(c) By mere execution of this AgreementStockholder Representative, Stockholders agree that:
(i) Purchaser may rely conclusively on and the instructions and decisions of Stockholder Representative shall not receive compensation for services as such. Notices or communications to any actions required or permitted from the Stockholder Representative shall constitute notice to be taken by or from each of the Company Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representativetheir permitted transferees.
(ii) all actionsThe Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Company Stockholders (other than ▇▇▇▇▇ Associates Investor(s)) shall severally indemnify the Stockholder Representative and hold him or her harmless against any loss, decisions, and instructions liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause arising out of action against Purchaser or Surviving Corporation for any action taken in connection with the acceptance or omittedadministration of the Stockholders Representative's duties hereunder, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without including the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred of any legal counsel retained by the Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have all the rights, responsibilities, powers and privileges of the Stockholder Representative set forth in this Agreement in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under ARTICLE IX or under the Escrow Agreement [***]. In addition, the Company Stockholders (by virtue of the approval of the Merger, the adoption of this Agreement and the execution of the Letter of Transmittal; other than the holders of Dissenting Shares) and the holders of Company Stock Options (by virtue of the execution of the Letter of Transmittal) hereby irrevocably nominate, constitute and appoint ▇▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇as the agent and true and lawful attorney in fact of the Company Securityholder (the “Stockholder Representative”), with full power of substitution, to act in the name, place and stead of the Company Securityholders for purposes of executing any documents and taking any actions that the Stockholder Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under ARTICLE IX or under the Escrow Agreement [***]. ▇▇▇▇▇▇ shall fill such vacancy ▇▇▇▇▇▇▇ hereby accepts its appointment as the Stockholder Representative.
(b) the Company Stockholders (by virtue of the approval of the Merger, the adoption of this Agreement and be deemed the execution of the Letter of Transmittal; other than the holders of Dissenting Shares) and the holders of Company Stock Options (by virtue of the execution of the Letter of Transmittal) grant to the Stockholder Representative full authority to execute, deliver, acknowledge, certify and file with respect to the Indemnity Escrow Fund, [***] or otherwise on behalf of the Company Securityholders (in the name of any or all of the Company Securityholders or otherwise) any and all documents that the Stockholder Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Stockholder Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by this Agreement, the Escrow Agreement and any other contract or document executed in connection with the transactions hereby and shall be obligated to coordinate with the Paying Agent in all matters relating to the distribution of funds to Company Securityholders other than with respect to the amount delivered at the Closing and out *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION of the Indemnity Escrow Fund. Notwithstanding anything to the contrary contained in this Agreement, the Escrow Agreement or in any other contract executed in connection with the transactions contemplated hereby, each Parent Indemnitee shall be entitled to deal exclusively with the Stockholder Representative on all matters relating to [***], ARTICLE IX and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed with respect to the Indemnity Escrow Fund, or on behalf of any Company Securityholder by the Stockholder Representative, and on any other action taken or purported to be taken with respect to the Indemnity Escrow Fund or otherwise on behalf of any Company Securityholder by the Stockholder Representative, as fully binding upon such Company Securityholder.
(c) The power of attorney granted in Section 10.13(b): (i) is an agency coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholder Representative; and (iii) shall survive the dissolution, death, incapacity of or other similar event affecting, each of the Company Securityholders.
(d) In dealing with this Agreement and in exercising or failing to exercise all or any of the powers conferred upon the Stockholder Representative under this Agreement, the Escrow Agreement and any other Contract executed in connection with the transactions contemplated hereby, (i) the Stockholder Representative shall not assume any, and shall incur no, responsibility to the Indemnity Escrow Fund or any Company Securityholder by reason of any error in judgment or other act or failure to act in connection with this Agreement, except for all purposes; howeverany act or failure to act which represents gross negligence, no change of willful misconduct or bad faith, and (ii) the Stockholder Representative shall be effective until Purchaser is given notice of it by the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may entitled to rely conclusively on the instructions and decisions advice of Stockholder Representative as to any actions required counsel, accountants or permitted to be taken by Stockholders other independent experts or Stockholder Representative hereunder and under advisors experienced in the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisionsmatter at issue, and instructions any error in judgment or other act or failure to act on the part of the Stockholder Representative pursuant to such advice shall be conclusive and binding on Stockholders; no not subject the Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted Representative to liability to the Indemnity Escrow Fund or any instruction as given or omitted by Company Securityholder. The Company Securityholders shall jointly and severally indemnify the Stockholder Representative and hold it harmless for, against and from any loss, liability or expense (including attorneys fees reasonably incurred or suffered as a result of the performance of its duties under this Agreement) incurred without gross negligence, willful misconduct or bad faith on its part and arising out of or in connection with the acceptance, exercise or administration of its duties hereunder.
(iiie) If the Stockholder Representative shall resign, die, become disabled or otherwise be unable to fulfill his responsibilities as the Stockholder Representative or the agent of the Company Securityholders, then the Company Securityholders shall, within ten days after such death or disability, appoint a successor as the Stockholder Representative and agent for the Company Securityholders and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Stockholder Representative” for purposes of this Agreement. If for any reason there is no Stockholder Representative at any time, all references herein to the Stockholder Representative shall be deemed to fulfill any fiduciary obligation refer to Stockholders so long as no Stockholder is adversely affected ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(f) All expenses incurred by any action or failure to act by the Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach connection with the performance of this Section would be inadequate, therefore Purchaser its duties as Stockholder Representative shall be entitled to injunctive reliefborne and paid exclusively by the Company Securityholders. All of the indemnities, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent immunities and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, powers granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof under this Agreement shall survive the Effective Time.termination of this Agreement. *** CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
Appears in 1 contract
Sources: Merger Agreement (Valeant Pharmaceuticals International)
Stockholder Representative. (a) In order to administer efficiently By voting in favor of the implementation adoption of this Agreement, the waiver approval of the Merger and the consummation of the Merger, executing a Joinder Agreement, and receiving the benefits of the Merger, including the right to receive the consideration payable in connection with the Merger, each Company Indemnitor shall be deemed to have agreed to appoint Shareholder Representative Services LLC as the representative, agent and attorney-in-fact for and on behalf of the Company Indemnitors to, as of the Closing, give and receive notices and communications with respect to any indemnification or similar claims to be recovered against the Escrow Cash, to authorize payment to any Parent Indemnified Party from the Escrow Cash in satisfaction of claims hereunder by Parent, to object to such payments, 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, in each case relating to this Agreement or the {N4442029.10} 255288355 v23 transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) expressly mandated or permitted by the terms of this Agreement and any Related Agreements. The Stockholder Representative may resign at any time upon at least ten (10) days prior written notice to the Company Indemnitors. Such agency may be changed by the Company Indemnitors from time to time upon not less than 30 days prior written notice to Parent; provided, that the Stockholder Representative may not be removed unless the former holders of a majority of Company Capital Stock agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, any vacancy in the position of Stockholder Representative may be filled by the former holders of a majority of Company Capital Stock. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services other than pursuant to the terms of the Engagement Letter. After the Closing, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Company Indemnitors.
(b) Neither the Stockholder Representative nor any member of the Advisory Committee (as defined in that certain engagement letter entered into between the Stockholder Representative and certain of the Company Indemnitors in connection with the transactions contemplated hereby (the “Engagement Letter”)) shall incur liability of any conditions kind with respect to any action or omission by the Stockholder Representative or the Advisory Committee in connection with their services pursuant to this Agreement, the Engagement Letter and the agreements ancillary hereto, except to the obligations extent resulting from the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable. The Stockholder Representative shall not be liable for any action or omission pursuant to consummate the transactions advice of counsel. For the avoidance of doubt, the first sentence of this Section 8.6(b) shall not prejudice the Stockholder Representative’s right to indemnification from the members of the Advisory Committee (in their capacity as Company Indemnitors) pursuant to the following sentence. The Company Indemnitors shall, severally and not jointly in accordance with their respective Pro Rata Shares, indemnify, defend and hold harmless the Stockholder Representative and each member of the Advisory Committee from and against any and all losses, liabilities, damages, penalties, fines, forfeitures, actions, fees, and reasonable out-of-pocket costs and expenses (including the out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) to the extent arising out of or in connection with the Stockholder Representative’s or the settlement Advisory Committee’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any dispute such Representative Loss is adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholder Representative or such member of the Advisory Committee, as applicable, the Stockholder Representative or such member of the Advisory Committee, as applicable, shall promptly reimburse the Company Indemnitors the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholder Representative or members of the Advisory Committee by the Company Indemnitors, any such Representative Losses may be recovered by the Stockholder Representative (on behalf of itself and notices the Advisory Committee) from (i) the funds in the Expense Fund Account and (ii) any other funds that become payable to the Company Indemnitors under this Agreement at such time as such amounts would otherwise be distributable to the Company Indemnitors; provided, that while this section allows the Stockholder Representative to recover Representative Losses from the aforementioned sources of funds, this does not relieve the Company Indemnitors from their obligation to promptly pay, in accordance with their respective pro rata portions, such Representative Losses as they are suffered or actionsincurred, settlement nor does it prevent the Stockholder Representative or notices under any member of the Earnout Escrow Advisory Committee from seeking any remedies available to it at law or otherwise. In no event shall the Stockholder Representative be required to advance its own funds on behalf of the Company Indemnitors or otherwise. The Company Indemnitors acknowledge and agree that the foregoing indemnities shall survive the resignation or removal of the Stockholder Representative or the termination of this Agreement. {N4442029.10} 255288355 v23
(c) Upon the Closing, Parent shall wire to an account designated by the Stockholder Representative (the “Expense Fund Account”) an amount of $500,000 in cash (the “Expense Fund”), which shall be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Indemnitors shall not receive any interest or Indemnity Escrow Agreementearnings on the Expense Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative shall not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, Stockholders hereby appoint ▇▇▇▇▇ gross negligence or willful misconduct. The Stockholder Representative shall hold these funds separate from its corporate funds, shall not use these funds for its operating expenses or any other corporate purposes and shall not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative shall deliver the balance of the Expense Fund to the Paying Agent for further distribution to the Company Indemnitors in accordance with Section 2.1; provided, that as a condition to Paying Agent’s obligation to make such payments, the Stockholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the portion of such Expense Fund distribution payable to each Company Indemnitor, which portion shall be paid to each Company Indemnitor rounded down to the nearest whole cent. For Tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Company Indemnitors at the time of Closing. Any amounts required to be withheld with respect to the deemed payment to a Company Indemnitor of its portion of the Expense Fund shall reduce the other payments to such Person at Closing in accordance with Article II and shall not reduce the Expense Fund.
(d) A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 10.6 and Section 10.7 hereof, shall constitute a decision of the Company Indemnitors and shall be final, binding and conclusive upon the Company Indemnitors. Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Indemnitors.
(e) Notwithstanding that the Company and its Subsidiaries have been represented by J▇▇▇▇ ▇▇▇▇▇▇ as their representative LLP ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns “J▇▇▇▇ ▇▇▇▇▇▇”) in the preparation, negotiation and execution of this Agreement and the Related Agreements, each of Parent and the Company agrees that after the Closing J▇▇▇▇ ▇. ▇▇▇▇▇ shall fill may represent the Stockholder Representative, Advisory Committee, Company Indemnitors and/or their respective Representatives in all matters relating to this Agreement and the Related Agreements, including in respect of any indemnification claims pursuant thereto. Each of Parent and the Company hereby agrees that any attorney-client privilege, attorney-client work protection and expectation of client confidence belonging to the Company and/or any of its Subsidiaries and related to the transactions contemplated by this Agreement and the Related Agreements, and all information and documents covered by such vacancy privilege or protection shall, after the Closing, belong to, be deemed the right of, and be deemed Stockholder Representative for all purposes; however, no change of controlled solely by the Company Indemnitors and may only be waived by the Stockholder Representative on behalf of the Company Indemnitors. To the extent that Parent or the Company receives or takes physical possession of any privileged or protected material covered by this Section 8.6(e) after the Closing, such receipt or possession shall not, in any way, be effective until Purchaser is given notice of it deemed a waiver by the Stockholders.
Company Indemnitors (cor any one of them) By mere execution of the privileges or protections described in this AgreementSection 8.6(e). Each of Parent and the Company hereby acknowledges, Stockholders agree that:
(i) Purchaser may rely conclusively on behalf of itself and its Representatives, that it has had an opportunity to ask for and has obtained information relevant to such representation, including disclosure of the instructions and decisions reasonably foreseeable adverse consequences of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisionssuch representation, and instructions it hereby waives any conflict arising out of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representativessuch future representation. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.{N4442029.10} 255288355 v23
Appears in 1 contract
Stockholder Representative. 9.8.1 Each of the Stockholders hereby appoints the Stockholder Representative as such Stockholder's agent and attorney-in-fact, coupled with an interest, to act for and on behalf of all of the Stockholders, in the sole and absolute discretion of the Stockholder Representative, to (a) In order give and receive notices and communications on behalf of the Stockholders (including, without limitation, Claim Notices, and Claim Objection Notices, to administer efficiently collect and pay funds, to agree to, assert, negotiate, enter into settlements and compromises of, and demand arbitration, commence and defend litigation and comply with orders of courts and awards of arbitrators with respect to any claim of indemnification under this Article 9, and to take all other actions that are either (i) necessary or appropriate in the implementation sole and absolute discretion of the Stockholder Representative for the accomplishment of the foregoing, or (ii) specifically contemplated or mandated by the terms of this Article 9, and (b) to grant any extension, consent or waiver contemplated by Sections 8.3, 10.3 and 10.4 hereof, and for no other purpose whatsoever. By execution of this Agreement, the waiver of any conditions Stockholder Representative hereby accepts such appointment.
9.8.2 Upon not less than thirty (30) days notice to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative diesand API, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed the Stockholders may remove the Stockholder Representative for all purposes; howeverany or no reason upon the affirmative vote of Stockholders collectively representing at least fifty percent (50%) in Pro Rata Portion of the Stockholders, subject to appointment of a replacement Stockholders Representative by the same percentage in interest of the Stockholders. The Stockholder Representative shall receive no change of compensation for his services as such and the Stockholder Representative shall not be effective until Purchaser is required to post a bond. The Stockholder Representative shall use commercially reasonable efforts to provide the Stockholders with (a) Claim Notices and Claim Objection Notices from API, if any, and (b) any waivers or grants given notice of it or made by the StockholdersStockholder Representative under Section 8.3 and 10.4 hereof, and to keep the Stockholders informed in reasonable detail regarding any claim or proceedings under this Article.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of 9.8.3 The Stockholder Representative shall not be liable for any act or omission in his capacity as to any actions required such while acting in good faith and in the exercise of reasonable judgment. Excepting gross negligence or permitted to be taken by willful misconduct, the Stockholders or shall indemnify the Stockholder Representative hereunder and under hold the Escrow Agreements and no party shall have Stockholder Representative harmless against any cause loss, liability or expense incurred by the Stockholder Representative arising out of action against Purchaser for action taken by Purchaser or in reliance upon actions, decisions connection with the acceptance or instructions administration of the duties of Stockholder Representative.
(ii) all actions, decisionsincluding the reasonable fees and expenses of any legal counsel, investment bankers, accountants, representatives and instructions of other professional advisors retained by the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Representative. The Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected have acted reasonably and prudently if he acts in accordance with advice by any action or failure to act legal counsel retained by the Stockholder Representative in a disproportionate measure compared to any other Stockholderhis capacity as such.
(d) Remedies at law for breach 9.8.4 A decision, act, consent or instruction of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative shall constitute a decision of the Stockholders and bind executorsshall be final, heirsbinding and conclusive upon the Stockholders and API may rely upon any such decision, successorsact, and legal representatives. All reasonable fees and expenses incurred by consent or instruction of the Stockholder Representative shall be paid as being the decision, act, consent or instruction of the Stockholders for all purposes under this Article 9 and Sections 8.3 and 10.4 hereof. API is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative.
9.8.5 In the event that the Stockholder Representative incurs any expenses in performance of his duties hereunder or in acting on behalf of the Stockholders, the Stockholders pro rata agree to promptly reimburse the Stockholder Representative upon receipt of an invoice therefor delivered by the Stockholder Representative in proportion to their percentage interest in Seller immediately before respective Pro Rata Portions of the Effective Time. The provisions hereof shall survive the Effective Timeamount of such invoice.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative") and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fill such vacancy as its agent and be deemed attorney-in-fact, as the Stockholder Representative (the "Stockholder ----------- Representative") for and on behalf of the Stockholders (and with regard to -------------- Claims made against the Stockholders directly, for and on behalf of the Stockholders) to give and receive notices and communications, to authorize payment to Parent from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, 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 purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, by two-thirds of the Stockholders agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund (or, in the event there are no amounts remaining in the Escrow Fund, by three of the four other Stockholders. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Stockholders.
(cb) By mere execution The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith and in the exercise of this Agreementreasonable judgment. The Stockholders on whose behalf the Holdback and Escrow Shares were contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, Stockholders agree that:
(i) Purchaser may rely conclusively liability or expense incurred without negligence or bad faith on the instructions and decisions part of the Stockholder Representative as to and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any actions required or permitted to be taken legal counsel retained by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(iic) all actionsA decision, decisionsact, consent or instruction of the Stockholder Representative, including but not limited to an amendment, extension or waiver of this Agreement pursuant to Section 8.3 and instructions Section 8.4 hereof, shall ----------- ----------- constitute a decision of the Stockholders and shall be final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative shall be conclusive as being the decision, act, consent or instruction of the Stockholders. The Escrow Agent and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation Parent are hereby relieved from any liability to any person for any action taken acts done by them in accordance with such decision, act, consent or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective TimeRepresentative.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Lantronix Inc)
Stockholder Representative. (a) In order to administer efficiently Each of the implementation of this Agreement, the waiver of any conditions to the obligations to consummate the transactions or the settlement of any dispute and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Company Stockholders hereby appoint appoints Ji S▇▇▇▇▇ , ▇▇▇▇ ▇▇▇▇▇ s or her agent and attorney-in-fact, as their representative ("the Stockholder Representative") Representative for and authorize him to take all action necessary in connection with implementation of the Agreement on behalf of the Company Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and communications, to authorize payment to Parent of shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by Parent, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, and to take any and all action contemplated to be taken other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by or on behalf the terms of Stockholders under this Agreement, and of Escrow . Such agency may be changed by the Company Stockholders under the Earnout Escrow Agreement from time to time upon not less than thirty (30) days prior written notice to Parent and the Indemnity Escrow Agreement (collectivelyAgent; provided, "however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Agreements").Fund agree to such removal and
(b) In the event The Stockholder Representative dies, becomes legally incapacitated shall not be liable for any act done or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy and be deemed omitted hereunder as the Stockholder Representative while acting in good faith and in the exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Shares were contributed to the Escrow Fund shall indemnify the Stockholder Representative and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence or bad faith on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. After all claims for all purposesLosses by Parent set forth in Officer's Certificates delivered to the Escrow Agent and the Stockholder Representative has been satisfied, or reserved against, the Stockholder Representative, with the consent of the majority in interest in the Escrow Fund, may recover from the Escrow Fund at the end of the Escrow Period payments not yet paid for any expenses incurred in connection with the Stockholder Representative's representation hereby.
(c) A decision, act, consent or instruction of the Stockholder Representative pursuant to this Agreement shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders; howeverand the Escrow Agent and Parent may rely upon any such decision, no change act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Stockholders. In addition, the Stockholder Representative may agree to the amendment, extension or waiver of this Agreement pursuant to SECTIONS 7.1 and 7.2 hereof. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative.
(d) Subject to Parent's prior claims for indemnification against the Escrow Fund, the Stockholder Representative shall be effective until Purchaser is given notice of it by entitled to receive payment for its reasonable and documented expenses therefrom, prior to any payments to the Company Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the Stockholder Representative shall be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation for any action taken or omitted, decision made or omitted or any instruction as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Stockholder Representative. (a) In order Each of the Principal Stockholders by its execution and delivery of this Agreement, and each Stockholder other than the Principal Stockholders, by his, her or its execution of a Letter of Transmittal, shall appoint the Stockholder Representative with full power and authority to administer efficiently execute and deliver any certificates or documents required to be delivered at Closing by the implementation Stockholders, in such capacity on behalf of the Stockholders, and, in all events, all such acts shall be fully effective for all purposes of this Agreement. Subject to the terms and conditions of this Agreement, the waiver Stockholder Representative, through its authorized representatives, shall have full power and authority to act in all respects hereunder in its sole discretion, as the sole, true and lawful agent, proxy and attorney-in-fact of any conditions each of the Stockholders, with full power and authority to take all actions contemplated by and exercise all rights to be taken in the name of and for and on behalf of the Stockholders with respect to all matters to be performed or otherwise undertaken by the Stockholders pursuant to this Agreement and the Related Documents (including the Escrow Agreement), including, but not limited to, (i) the right to execute and deliver certificates, receipts, documents and papers that may be necessary or deemed advisable by the Stockholder Representative to carry out the transactions contemplated by this Agreement and the Related Documents, and generally to act for and in the name and on behalf of each of the Stockholders with respect to the obligations to consummate the transactions or the settlement of any dispute and notices under contemplated by this Agreement or actions, settlement or notices under and the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Related Documents as their representative fully as could each Stockholder if personally present and acting; and ("Stockholder Representative"ii) and authorize him otherwise to take all action that the Stockholder Representative may consider necessary or appropriate in connection with implementation the consummation of the Agreement on behalf of Stockholders, waive any condition to or obligation to consummate the transactions, give and receive notices and take any and all action transactions contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements")Related Documents.
(b) In the event Each Stockholder Representative dies, becomes legally incapacitated or resigns ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy confers and be deemed Stockholder Representative for all purposes; however, no change of grants to the Stockholder Representative the authority contained herein for the purpose of completing the transactions contemplated by this Agreement and the Related Documents. All power and authority conferred by the Stockholders to the Stockholder Representative is coupled with an interest and is irrevocable; and to the extent not prohibited by law, shall not be effective until Purchaser is given notice terminated by any acts of it any of the Stockholders or by operation of law or by occurrence of any event whatsoever, including the death, incapacity, dissolution, liquidation, termination, bankruptcy or insolvency of any of the Stockholders.
(c) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on Each Stockholder releases the instructions and decisions of Stockholder Representative as from, and agrees to indemnify the Stockholder Representative against, liability for any actions required action taken or permitted to be not taken by Stockholders or it in its capacity as such, except for any liability of the Stockholder Representative hereunder and under to a Stockholder for loss which such Stockholder may suffer from the Escrow Agreements and no party shall have any cause willful misconduct or gross negligence of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of the Stockholder Representative.
(iid) all actionsThe Stockholder Representative shall receive no compensation for services rendered as Stockholder Representative, decisionsbut, to the fullest extent permitted by law, shall receive reimbursement from, and instructions be indemnified by, the Stockholders, pro rata, out of any remaining portions of the Escrow Amount otherwise payable to Stockholders upon termination of the escrow for any and all otherwise unreimbursed Company Transaction Expenses and other liabilities incurred by the Stockholder Representative, whether such Company Transaction Expenses and other liabilities are incurred before, on or after the Effective Time. Unless the Stockholders or the Escrow Agent (with the consent of the Parent upon conclusion of the escrow period) pays all such Company Transaction Expenses and other liabilities upon demand by the Stockholder Representative, the Stockholder Representative shall be conclusive have no obligation to continue to incur such Company Transaction Expenses and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser other liabilities, or Surviving Corporation for to continue to perform any action taken or omitted, decision made or omitted or any instruction as given or omitted by duties hereunder. The Stockholder Representative hereunder.
(iii) may charge all such Company Transaction Expenses and other liabilities against any payment to which the Stockholders may be entitled under this Agreement or the Escrow Agreement; provided that the Stockholder Representative gives written notice of the amount of such expenses to Parent or the Escrow Agent, as the case may be, at least two (2) business days prior to the date of such payment, and an accounting of how such expenses shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected borne by any action or failure to act by Stockholder Representative in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach of this Section would be inadequate, therefore Purchaser the Stockholders. Parent and the Escrow Agent shall be entitled to injunctive relief, without rely entirely on any such written notice in reducing the necessity amount of proving damages any payments to be made to any Stockholders in an action to enforce this Sectionrespect of any payments.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.
Appears in 1 contract
Stockholder Representative. (a) In order to administer efficiently By virtue of the implementation approval of the Merger and this AgreementAgreement by the requisite vote of the Stockholders, the waiver of any conditions with respect to the obligations to consummate the transactions or the settlement of any dispute Escrow and notices under this Agreement or actions, settlement or notices under the Earnout Escrow Agreement or Indemnity Escrow Agreement, Stockholders hereby appoint ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as their representative ("Stockholder Representative"SECTION 1.6(c) and authorize him to take all action necessary in connection with implementation each of the Agreement on behalf of Stockholders, waive any condition Stockholders shall be deemed to or obligation have agreed to consummate the transactions, give and receive notices and take any and all action contemplated to be taken by or on behalf of Stockholders under this Agreement, and of Escrow Stockholders under the Earnout Escrow Agreement and the Indemnity Escrow Agreement (collectively, "Escrow Agreements").
(b) In the event Stockholder Representative dies, becomes legally incapacitated or resigns appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall fill such vacancy as its agent and be deemed attorney-in-fact, as the Stockholder Representative for and on behalf of the Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow in satisfaction of claims by any Indemnified Party, to agree or disagree with the determination of the Earn-Out Payment, to object to such payments, 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 or disputes related to the Earn-Out Payment, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party pursuant to the Escrow or SECTION 1.8(c), in each case relating to this Agreement or the transactions contemplated hereby, and to take all purposes; however, no change other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Stockholders from time to time upon not less than thirty (30) days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be effective until Purchaser is given required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for its services. With respect to the Escrow or SECTION 1.8(c), notices or communications to or from the Stockholder Representative shall constitute notice of it by to or from the Stockholders.
(cb) By mere execution of this Agreement, Stockholders agree that:
(i) Purchaser may rely conclusively on the instructions and decisions of Stockholder Representative as to any actions required or permitted to be taken by Stockholders or Stockholder Representative hereunder and under the Escrow Agreements and no party shall have any cause of action against Purchaser for action taken by Purchaser in reliance upon actions, decisions or instructions of Stockholder Representative.
(ii) all actions, decisions, and instructions of the The Stockholder Representative shall not be conclusive and binding on Stockholders; no Stockholder shall have a cause of action against Purchaser or Surviving Corporation liable for any action taken or omitted, decision made act done or omitted or any instruction hereunder as given or omitted by Stockholder Representative hereunder.
(iii) Stockholder Representative shall be deemed to fulfill any fiduciary obligation to Stockholders so long as no Stockholder is adversely affected by any action or failure to act by Stockholder Representative while acting in a disproportionate measure compared to any other Stockholder.
(d) Remedies at law for breach good faith and in the exercise of this Section would be inadequate, therefore Purchaser shall be entitled to injunctive relief, without the necessity of proving damages in an action to enforce this Section.
(e) The provisions of this Section are independent and severable to constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by each Stockholder to the Stockholder Representative and bind executors, heirs, successors, and legal representatives. All reasonable fees and expenses incurred by Stockholder Representative shall be paid by Stockholders pro rata in proportion to their percentage interest in Seller immediately before the Effective Time. The provisions hereof shall survive the Effective Time.reasonable
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)