Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”). (b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto. (c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action. (d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share. (e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that: (i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment. (ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative; (iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements; (v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and (vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. (f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement. (g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Merger Agreement (Poseida Therapeutics, Inc.), Merger Agreement (Poseida Therapeutics, Inc.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Each Participating Holder, by virtue of the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative Agreement and approval of the Company Indemnitors for Merger by the purposes Participating Holders (regardless of whether or not all Participating Holders vote in favor of or consent to the adoption of this Agreement and the Escrow Agreement approval of the Merger and the transactions contemplated hereby, and regardless of whether at a meeting or in an action by written consent in lieu thereof), designates Shareholder Representative Services LLC (the “Stockholders’ Representative”) as his, her or its representative for purposes of this Agreement. The Participating Holders and their respective successors shall be deemed to have approved, and shall be bound by, any and all actions taken by the Stockholders’ Representative on their behalf under or otherwise relating to this Agreement and the other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of them in writing. In the event any Stockholders’ Representative is unable or unwilling to serve or shall resign, a successor Stockholders’ Representative shall be selected by the holders of a majority of the shares of Company Common Stock outstanding immediately prior to the Closing. A Stockholders’ Representative may not resign, except upon 30 days prior written notice to Parent and Merger Sub. In the event of a notice of proposed resignation, or any death, disability or other replacement of a Stockholders’ Representative, a successor shall be appointed effective immediately thereafter (and, in the case of a death of a Stockholders’ Representative, the successor shall be deemed to be the executor or other representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the successor Stockholders’ Representative. No replacement of any Stockholders’ Representative shall be effective against Parent or Merger Sub until (i) the proposed successor Stockholders’ Representative assumes in writing all obligations of the original Stockholders’ Representative under this Agreement and (ii) Parent and Merger Sub have consented to the proposed successor Stockholders’ Representative (such consent not to be unreasonably withheld or delayed). Each successor Stockholders’ Representative shall have all the power, rights, authority and privileges hereby conferred upon the original Stockholders’ Representative.
(b) In the event Parent and Merger Sub shall be entitled to rely upon any actions, communication or writings taken, given or executed by the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest on behalf of the Escrow Fund at such time shall Participating Holders. After the Closing, all communications or writings to be authorized sent to the Participating Holders pursuant to this Agreement may be addressed to the Stockholders’ Representative and shall select another representative to fill such vacancy and such substituted representative any communication or writing so sent shall be deemed notice to be a all of the Stockholders hereunder. The adoption and approval of this Agreement by the holders of the Company Stock shall constitute the consent and agreement of each of the Stockholders that the Stockholders’ Representative for all purposes is authorized to accept deliveries, including any notice, on behalf of this Agreement and the documents delivered each holder of Company Stock pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorParticipating Holder, with full power of substitution in his, her or its such holder’s name and on his, her or its such holder’s behalf to act according to the terms of this Agreement and the Escrow Agreementother documents contemplated hereby in the absolute discretion of the Stockholders’ Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions, notices and other instruments contemplated by or deemed advisable in connection with this Agreement and the other documents contemplated hereby, including without limitation Article IX hereof. This power of attorney and all authority hereby conferred is granted in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Participating Holder or operation of law, whether by such holder’s death or disability or by any other event.
(d) The Stockholders’ Representative hereby accepts agrees to serve as the Stockholders’ Representative in accordance with the applicable terms hereof and to be bound by such appointmentterms.
(iie) Parent shall be entitled The Stockholders’ Representative will incur no liability of any kind with respect to rely conclusively on the instructions and decisions given any action or made omission by the Stockholders’ Representative as in connection with the Stockholders’ Representative’s services pursuant to any of this Agreement, the matters described in this Section 10.1(eEscrow Agreement and that certain Acquiom M&A Payments Agreement (the “Acquiom Payments Agreement”) to be entered into at or prior to Closing by and among Acquiom Administration LLC (the “Payments Administrator”), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow AgreementCompany, except for fraud or willful breach in the event of this Agreement on the part of liability directly resulting from the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Participating Holders will severally (based on each Participating Holder’s Pro Rata Proportion but not jointly indemnify, defend and hold harmless the Stockholders’ Representative shall not be liable to from and against any Company Stockholder for any apportionment 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 distribution in connection with the Stockholders’ Representative’s execution and performance of payments made by it this Agreement, the Escrow Agreement and the Acquiom Payments Agreement, in good faitheach case as such Representative Loss is suffered or incurred; provided, and if that in the event that any such apportionment or distribution Representative Loss is subsequently determined finally adjudicated to have been made in errordirectly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the sole recourse Stockholders’ Representative will reimburse the Participating 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 Stockholders’ Representative by the Participating Holders, any Company Stockholder to which payment was duesuch Representative Losses may be recovered by the Stockholders’ Representative (i) first, but not made, shall be to recover from the funds in the Expense Fund, (ii) second, solely to the extent the remaining funds available to the Stockholders’ Representative in the Expense Fund are insufficient, from either (A) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Participating Holders or (B) any future contingent consideration at such time as any such amounts would otherwise be distributable to the Participating Holders, and (iii) third, solely to the extent the remaining funds in the Expense Fund are insufficient and there are insufficient funds immediately available to the Stockholders’ Representative from the Escrow Fund and/or contingent consideration, from the Participating Holders directly; provided, that while this section allows the Stockholders’ Representative to be paid from the Expense Fund, the Escrow Fund and any other Company Stockholders future contingent consideration, this does not (i) require the Stockholders’ Representative to wait for future releases of funds from the Escrow Fund or future payments of contingent consideration before recovering directly from the Participating Holders, (ii) relieve the Participating Holders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, or (iii) prevent the Stockholders’ Representative from seeking any payment in excess remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Participating Holders or otherwise. The Participating Holders acknowledge and agree that the limitations set forth in Section 9.5 are not applicable to the indemnification provided in this Section 2.3(e), and that the foregoing indemnities will survive the resignation or removal of the Stockholders’ Representative or the termination of this Agreement.
(f) Upon the Closing, the Company will wire to the Stockholders’ Representative an aggregate amount of US$250,000 (the “Expense Fund”). The Participating Holders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to which the Stockholders’ Representative any ownership right that they are determined may otherwise have had in any such interest or earnings. Within five (5) business days after the completion of the Stockholders’ Representative’s responsibilities under this Agreement subject to have been entitled. Each the payment provisions in Section 1.9 in the case of payments to holders of Company Stockholder acknowledges and agrees that Options, the Stockholders’ Representative shall deposit by wire transfer in immediately available funds, pursuant to an Allocation Certificate: (i) with the Payments Administrator an amount of cash equal to the portion of the then balance of the Expense Fund payable to Participating Holders for whom the payment of the balance of the Expense Fund is not subject to wage or payroll tax withholding; and (ii) with the Surviving Corporation’s (or other Affiliate’s (at the direction of Parent)) payroll agent an amount of cash equal to the portion of the then remaining balance of the Expense Fund payable to Participating Holders for whom the payment of the balance of the Expense Fund is subject to wage or payroll tax withholding. For tax purposes, the Expense Fund will be obligated to take any actions treated as having been received and voluntarily set aside by the Participating Holders at the time of Closing and shall be entitled subject to take wage withholding as if paid to such actions as Participating Holders on the Closing Date to the extent wage withholding is required by law; provided, that notwithstanding anything herein to the contrary, neither the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold nor the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except Payments Administrator shall be responsible for any liability imposed by Legal Requirements for gross negligence wage withholding or willful misconductrelated calculations or determinations.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following Upon approval of the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, Merger and this Agreement by the adoption of this AgreementStockholders, the Company Indemnitors shall each Stockholder will be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ irrevocably appointed the Stockholders’ Representative, as the representative of the Company Indemnitors for the purposes of this Agreement his true and the Escrow Agreement lawful attorney-in-fact and agent (the “Stockholders’ Representative”), with full power of substitution or resubstitution, to act solely and exclusively on behalf of such Stockholder with respect to the transactions contemplated by this Agreement, including the Merger, and to act on behalf of such Stockholder in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for such Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of such Stockholder;
(ii) to act for such Stockholder with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments thereto that the Stockholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give receipts for funds;
(v) to receive funds for the payment of expenses of such Stockholder and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of such Stockholder that the Stockholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Stockholder could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement.
(b) In the event The appointment of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to coupled with an interest and shall be a Stockholders’ Representative for all purposes irrevocable, and Buyer, Merger Subsidiary and Surviving Corporation and any other person may conclusively and absolutely rely, without inquiry, upon any action of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant in all matters referred to this Agreement herein. Any notices required to be made or delivered to the Escrow Agreement, including Company or any agreement between of the Stockholders shall be made to the Stockholders’ Representative and Parent relating shall discharge in full all notice requirements, as applicable, to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of such Stockholder and/or the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and with respect thereto. By their appointment of the Stockholders’ Representative, the Stockholders thereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of his appointment as the representatives of the Stockholders hereunder. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations of the Stockholders under this Agreement, but the Stockholders’ Representative shall not be liable responsible to any Stockholder for any act done or omitted hereunder or under damages which the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless Stockholders may suffer by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part performance of the Stockholders’ Representative and Representative’s duties under this Agreement, other than damages arising out from willful violation of applicable law or gross negligence in connection with the acceptance or administration performance of his/her such duties hereunder or under the Escrow this Agreement. The Stockholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of read into this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action otherwise exist against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Merger Agreement (CDC Corp), Merger Agreement (CDC Software CORP)
Stockholders’ Representative. (a) In order to efficiently administer certain matters The stockholders of the Company, by approving and adopting this Agreement and the Escrow Agreement and the transactions contemplated hereby following and thereby, hereby irrevocably appoint the ClosingStockholders’ Representative as their agent and attorney-in-fact for purposes of Section 8 and the Escrow Agreement, and consent to the taking by the Stockholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to the Indemnified Parties of cash or shares of Parent Common Stock, as applicable, out of the Escrow Fund in satisfaction of claims by the Indemnified Parties. The Stockholders’ Representative hereby agrees to negotiate, enter into settlements and compromises of Claims, including the defense or settlement third-party Claims, and demand arbitration, and comply with orders of courts and awards of arbitrators with respect to such Claims, resolve any claims for which Parent Indemnitees may be entitled to indemnification Claim made pursuant to Section 9, by 8; and take all actions necessary in the adoption judgment of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇Stockholders’ Representative for the accomplishment of the foregoing. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment as the representative of the Company Indemnitors Stockholders’ Representative for the purposes of this Agreement Section 8 and the Escrow Agreement Agreement. Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 8 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 on behalf of any Company stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Company stockholder by the Stockholders’ Representative, as fully binding upon such Company stockholder.
(b) If the Stockholders’ Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the stockholders of the Company, then a majority-in-interest of the Entitled Holders (calculated based upon their respective contributions to the Initial Escrow Amount pursuant hereto) shall, within ten (10) days after such death or disability, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position” for purposes of Section 8, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretothis Section 9.1.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, faith and any act done or omitted to be done pursuant in the absence of gross negligence. The Entitled Holders on whose behalf cash and/or share of Parent Common Stock were contributed to the advice of counsel Escrow Fund shall be conclusive evidence of such good faith. The severally indemnify Stockholders’ Representative shall be entitled to be indemnified and held hold Stockholders’ Representative harmless by the Company Indemnitors against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the such Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her such Stockholders’ Representative’s duties hereunder or under hereunder, including the Escrow Agreement. reasonable fees and expenses of any legal counsel retained by such Stockholders’ Representative, as set forth in Section 9.1(e) below.
(d) The Stockholders’ Representative shall be entitled to recover rely upon any out-of-pocket costs order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Stockholders’ Representative be responsible for the validity or sufficiency of this Agreement. In all questions arising under this Agreement, the Stockholders’ Representative may rely on the advice of counsel, and expenses reasonably incurred for anything done, omitted or suffered in good faith by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreementbased on such advice, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted anyone.
(e) The reasonable expenses incurred by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved Representatives while acting on behalf of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any the holders of Company Stockholder for any apportionment or distribution of payments made by it Common Stock under the authorization granted in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, this Section 9.1 shall be to recover from borne by the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions Entitled Holders pro rata and shall be entitled payable out of the Escrow Fund prior to take such actions as any payment to the Stockholders’ Representative deems appropriate Entitled Holders, but in its sole discretion. Each Company Stockholder further agrees all cases, after payment of any and all amounts owing to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductParent.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
Stockholders’ Representative. (ai) In order to efficiently administer certain matters contemplated Each holder of Series A Preferred Stock hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ irrevocably constitutes and appoints GFI as the representative sole and exclusive attorney-in-fact and proxy of the Company Indemnitors for the purposes such holder of this Agreement and the Escrow Agreement Series A Preferred Stock (the “Stockholders’ Representative”).
(b) In , with full power of substitution and resubstitution, to exercise or abstain from exercising the event rights granted to the Stockholders’ Representative diesholders of Series A Preferred Stock pursuant to Section 4(d), becomes unable this Section 6 and Section 8 to perform his the fullest extent permitted by law. Any action taken or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions not taken by the Stockholders’ Representative pursuant to this Agreement Section 6(b) shall not be subject to challenge or input from any such holder of Series A Preferred Stock. Each holder of Series A Preferred Stock hereby revokes any and all previous proxies with respect to such holder’s Series A Preferred Stock and no subsequent proxies (whether revocable or irrevocable) shall be given (and if given, such subsequent proxies shall not be effective) by such holder with respect to the Escrow AgreementSeries A Preferred Stock that conflict with this proxy. This proxy and power of attorney is intended to be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy and is granted for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and shall be valid and binding on any person to whom the holder of Series A Preferred Stock may transfer any of its Series A Preferred Stock. The power of attorney granted herein is a durable power of attorney and shall survive the dissolution, including bankruptcy, death or incapacity of each holder of Series A Preferred Stock. The provisions of this Section 6(b) shall terminate with respect to a holder of Series A Preferred Stock once such holder no longer owns any agreement between the Series A Preferred Stock. The Stockholders’ Representative and Parent relating may appoint one or more successor representatives to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant subject to the advice approval of counsel shall be conclusive evidence holders of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part a majority of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointmentSeries A Preferred Stock then outstanding.
(ii) Parent shall be entitled Each holder of Series A Preferred Stock hereby irrevocably delegates all power and authority to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to exercise, on behalf of such holder of Series A Preferred Stock, any and all rights of the matters described such holder in respect of such Series A Preferred Stock pursuant to Section 4(d), this Section 10.1(e)6 and Section 8, and no party shall have including the granting of any cause waivers or the exercise of action against Parent for any action taken by Parent in reliance upon any consent, approval or voting rights or powers on behalf of such instructions or decisions;holder.
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the holders of Series A Preferred Stock whatsoever with respect to its actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by reason each and every one of this Agreement a fiduciary relationship in respect the holders of any Company StockholderSeries A Preferred Stock. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and Corporation hereby agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate not, in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any losscapacity as such, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for have any liability imposed by Legal Requirements for gross negligence to the Corporation or willful misconductany of its Affiliates whatsoever with respect to its actions, decisions or determinations.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (M III Acquisition Corp.), Agreement and Plan of Merger (M III Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement Upon approval of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, this Agreement by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative stockholders of the Company Indemnitors for in accordance with the purposes DGCL and the Organizational Documents of the Company and the execution and delivery of this Agreement by the Company, Buyer and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In , each Securityholder without any further action thereby, irrevocably hereby consents, designates and appoints the event Stockholders’ Representative, including any replacement of the Stockholders’ Representative, as such Securityholder’s agent and attorney-in-fact, with full power and authority in the name of and for and on behalf of such Securityholder, to serve as the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of under this Agreement and to exercise the documents delivered pursuant hereto.
(c) All decisions power and actions authority granted to or required by the Stockholders’ Representative pursuant hereunder or under the Escrow Agreement to take actions contemplated hereby and thereby, all such actions being deemed to constitute facts ascertainable outside of this Agreement and shall be binding on each of the Securityholders. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative is hereby granted the power and authority on behalf of each Securityholder to execute and deliver the Escrow Agreement and to negotiate and enter into amendments to this Agreement for itself and on behalf of the Securityholders, to act on each Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow AgreementAgreement or any document delivered to the Stockholders’ Representative in such capacity pursuant hereto or thereto and to do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. All decisions, acts, consents or instructions of the Stockholders’ Representative may be relied upon by any third party as being the decision, act, consent or instruction of every Securityholder and shall be final conclusive and binding upon each Securityholder. In the event of the death, physical or mental incapacity or resignation of the Stockholders’ Representative or any successor Stockholders’ Representative, the Stockholders holding a majority of the issued outstanding shares of Company Capital Stock immediately prior to the Effective Time, on a fully-diluted as converted to Company Common Stock basis (including the personal representative of any agreement deceased or disabled Stockholder in the event of the death or disability of any Stockholder) shall promptly appoint a substitute Stockholders’ Representative reasonably acceptable to Buyer and shall notify Buyer and Escrow Agent of such action. As between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ RepresentativeSecurityholders, the Stockholders’ Representative shall not be liable for, and shall be indemnified by the Securityholders against any good faith error of judgment on the Stockholders’ Representative’s part or for any other act done or omitted hereunder by it in good faith in connection with the Stockholders’ Representative’s duties as Stockholders’ Representative, except for willful misconduct. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
(b) Certain Securityholders will enter into a letter agreement with the Stockholders’ Representative to provide direction to the Stockholders’ Representative in connection with the performance of its services under this Agreement and the Escrow Agreement (such Securityholders, including their individual representatives, hereinafter referred to as the “Advisory Group”). As between the Stockholders’ Representative while acting in good faithand the Securityholders, and any act done or omitted to be done pursuant to neither the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Representative Group”), shall be entitled to be indemnified and held harmless by the Company Indemnitors against liable for any loss, liability or expense incurred without bad good faith error of judgment on the part of the Stockholders’ Representative or for any other act done or omitted by it in good faith in connection with Stockholders’ Representative’s duties as stockholders’ representative, except for willful misconduct. The Securityholders shall indemnify, defend and hold harmless the Representative Group from and against any and all losses, claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Representative Expenses”) incurred without gross negligence or willful misconduct on the part of the Representative Group and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under hereunder.
(c) Such Representative Expenses may be recovered first from the Representative Fund, second, from any distribution of the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant Fund otherwise distributable to the terms Securityholders at the time of this Agreement or the Escrow Agreement (including the hiring of legal counsel distribution, and the incurring of legal fees and costs) third, directly from the Company Stockholders in accordance with Securityholders based on their respective Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow AgreementShares. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except Securityholders acknowledge that the Stockholders’ Representative shall not be relieved required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or administration of the Stockholders’ Representative’s duties. The Stockholders’ Representative will hold the Representative Fund as agent and for the benefit of the Securityholders in a segregated client account, separate from its corporate funds and will not voluntarily make such funds available to its creditors in the event of bankruptcy. The Stockholders’ Representative is not providing any investment supervision, recommendations or advice. The Stockholders’ Representative shall have no responsibility or liability imposed by Legal Requirements for any loss of principal of the Representative Fund other than as a result of its gross negligence or willful misconduct. Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Representative Fund, and has no tax reporting or income distribution obligations hereunder. The Representative Fund will be held or disbursed, in whole or in part, as determined in good faith by the Stockholders’ Representative. The retention by the Stockholders’ Representative of any amounts in the Representative Fund shall not be used as evidence that the Securityholders have any obligation hereunder. The Stockholders’ Representative shall not be liable permitted to make any Company Stockholder for any apportionment or distribution disbursements of payments made by amounts in the Representative Fund in the amounts and at the times that it determines in good faith.
(d) As soon as reasonably determined by the Stockholders’ Representative that the Representative Fund will be released by the Stockholders’ Representative, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated permitted to take any actions and shall be entitled either (i) distribute the Representative Fund Consideration to take such actions as the Securityholders or (ii) deposit the Representative Fund with the Exchange Agent, if then still engaged to handle disbursements of Merger Consideration, for further distribution to the Securityholders. At least thirty (30) days prior to the Representative Fund Release Date, the Stockholders’ Representative deems appropriate in its sole discretionshall provide Buyer with written notice setting forth the remaining balance of the Representative Fund and the amount of Representative Fund Consideration payable to each Securityholder, including each Employee Option Holder and Former Employee Option Holder (without accounting for any reduction to the Representative Fund Consideration for any Post-Closing Related Payroll Taxes). Each Company Stockholder further agrees to indemnify and hold Within fifteen (15) days of Buyer’s receipt of the Stockholders’ Representative’s written notice, Buyer shall provide the Stockholders’ Representative harmless with written notice setting forth: (A) the amount of Post-Closing Related Payroll Taxes to be withheld from the Representative Fund and against paid to Buyer (or any lossAcquired Company designated by Buyer) on the Representative Fund Release Date, liability or expense arising in connection with (B) the portion of the Representative Fund Consideration payable to each Employee Option Holder who remains an employee of any act or omission Acquired Company as of the date of such notice, and (C) the amount of Tax withholding attributable to the payment of the portion of the Representative Fund Consideration due to each Former Employee Option Holder and each Employee Option Holder who is no longer an employee of any Acquired Company as of the date of such notice. On the Representative Fund Release Date, the Stockholders’ RepresentativeRepresentative shall: (x) pay to the Buyer (or any designated Acquired Company) the amount of the Post-Closing Related Payroll Taxes designated by Buyer in such written notice, except such amount to be for the benefit and account of Buyer and the Acquired Companies, (y) deposit with Buyer (or any liability imposed Acquired Companies designated by Legal Requirements for gross negligence Buyer) the amount of the Representative Fund Consideration to be paid to the Employee Option Holders (as set forth in Buyer’ notice) who remain employees of any Acquired Company on the date of such notice, such amount to be disbursed by the relevant Acquired Company to the Employee Option Holders through such Acquired Company’s payroll process, and (z) deposit with Buyer (or willful misconductany Acquired Companies designated by Buyer) the Tax withholding amounts (as set forth in Buyer’s notice) attributable to the payment of the Representative Fund Consideration due to each Former Employee Option Holder and each Employee Option Holder who is no longer an employee of any Acquired Company as of the date of such notice, such amounts to be remitted by the relevant Acquired Company to the applicable Tax Authorities.
(e) The authority conferred under this Section 12.1 is an agency coupled with an interest and, to the extent permitted by applicable laws, all authority, powers, immunities and rights to indemnification conferred hereby are irrevocable and not subject to termination by any Securityholder or by operation of law, whether by the death or incapacity of any of the Securityholders, the termination of any trust or estate, in the event of bankruptcy or liquidation of any Securityholder, assignment of the whole or any fraction of his, her or its interest in the Escrow Fund or the Representative Fund, or the occurrence of any other event. If any Securityholder should die or become incapacitated, if any trust or estate of any of the above should be terminated, in the event of bankruptcy or liquidation of any Securityholder or assignment of the whole or any fraction of his, her or its interest in the Escrow Fund or the Representative Fund, or if any other event shall occur, any action taken by Stockholders’ Representative pursuant to this Section 12.1 shall be valid as if such death or incapacity, termination, bankruptcy or liquidation, assignment or other event had not occurred, regardless of whether or not Stockholders’ Representative or Buyer shall have received notice of such death, incapacity, termination, bankruptcy or liquidation, assignment or other event.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verisk Analytics, Inc.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated Each Principal Stockholder hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated irrevocably constitutes and appoints ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
, as such Principal Stockholder’s agent and attorney-in-fact, with full power and authority to act, including full power of substitution, in his, her or its name and on his, her or its behalf with respect to all matters arising from or in any way relating to this Agreement and any other agreement entered into in connection with this Agreement (bincluding the Ancillary Agreements) In or the event Transaction, including to do all things and to perform all acts required or deemed advisable, in its sole discretion, in connection with the Transaction as fully as such Principal Stockholder could if then personally present and acting alone. Without limitation, (i) any communication or other delivery validly delivered to the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes have been validly delivered to each Principal Stockholder, (ii) any consent given or waiver of any provision of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions or any other agreement entered into in connection with this Agreement, by the Stockholders’ Representative pursuant shall be binding upon each and every Principal Stockholder, and (iii) except as otherwise provided in Section 11.1, the Stockholders’ Representative is hereby authorized to execute for and on behalf of each Principal Stockholder any amendment to this Agreement or the Escrow any other agreement entered into in connection with this Agreement, including . This appointment of agency and this power of attorney is coupled with an interest and shall be irrevocable and shall not be terminated by any agreement between Principal Stockholder or by operation of law. Neither the Stockholders’ Representative and Parent nor any agent employed by it shall incur any Liability to any Principal Stockholder by virtue of the failure or refusal of the Stockholders’ Representative for any reason to consummate the Transaction or relating to the defense performance of its other duties hereunder or settlement any of any claims for which Parent its omissions or the Surviving Company may be entitled actions with respect thereto. The Principal Stockholders, jointly and severally, agree to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and indemnify the Stockholders’ Representative, his successors, assigns, agents, attorneys and affiliates (the “Stockholders’ Representative Parties”) and to hold the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held Parties harmless by the Company Indemnitors against any lossand all losses, liability Liabilities or expense expenses incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her his duties hereunder or under the Escrow Agreement. The as Stockholders’ Representative shall be entitled to recover any out-of-pocket Representative, including the reasonable costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement defending against any claim or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) Liability in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseherewith.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (DARA BioSciences, Inc.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ has been appointed by the Stockholders as agent and attorney-in-fact for each Stockholder, (i) to give and receive notices and communications to the representative of the Company Indemnitors Purchaser for the purposes of any purpose under this Agreement and the Escrow Additional Agreements, (ii) 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 disputes arising under or related to this Agreement, (iii) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger, and (vi) to take all actions necessary or appropriate in the “Stockholders’ Representative”).
(b) In the event judgment of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, for the Company Indemnitors who hold a majority in interest accomplishment of the Escrow Fund at such foregoing. Such agency may be changed by the Stockholders from time shall be authorized to and shall select another representative time upon no less than twenty (20) days prior written notice to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by Purchaser; provided, however, that the Stockholders’ Representative pursuant may not be removed unless holders of at least 51% of all of the Company Common Stock outstanding immediately prior to this Agreement the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock outstanding immediately prior to the Effective Time. Any removal or the Escrow Agreement, including any agreement between change of the Stockholders’ Representative and Parent relating shall not be effective until written notice is delivered to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Purchaser. No bond shall be binding upon all required of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for her services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithfaith and in the exercise of reasonable business judgment. A decision, and any act done act, consent or omitted to be done pursuant to instruction of the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders of the Company and shall be entitled to be indemnified final, binding and held conclusive upon each of the Stockholders. The Stockholders shall severally indemnify the Stockholders’ Representative and hold her harmless by the Company Indemnitors against any loss, liability liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharehereunder.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Merger Agreement (Vincera Pharma, Inc.), Merger Agreement (LifeSci Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of As used in this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the term “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies” shall mean Global Acquisition LLC, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold any Person appointed as a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the successor Stockholders’ Representative pursuant to this Agreement or Section 10.6. Global Acquisition LLC hereby accepts its appointment as the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the initial Stockholders’ Representative. Effective upon the Closing, without any further action by any other Person, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact in respect of each Company IndemnitorIndemnifying Party, with full power as his, her or its agent, to act in his, her or its name name, place and on hisstead, her or its behalf as such Indemnifying Party’s attorney-in-fact, to act according to the terms of give and receive notices and communications in connection with this Agreement and related matters, including in connection with Claims for indemnification under this Article 10 and Article 7 and to determine the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled Closing Cash Consideration pursuant to rely conclusively on Section 3.5 and the instructions and decisions given or made by the Stockholders’ Representative as Final Cash Consideration pursuant to any of the matters described in this Section 10.1(e)3.6, and no party shall have any cause to agree to, negotiate, and enter into settlements, adjustments and compromises of, and demand arbitration and comply with orders of action against Parent for any action taken by Parent courts and awards of arbitrators with respect to, such Claims, and to take all other actions that are either (i) necessary or appropriate in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions the judgment of the Stockholders’ Representative shall be conclusive and binding upon all for the accomplishment of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made foregoing or instruction given (ii) specifically mandated by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach terms of this Agreement on Agreement. Such agency may be changed by the part of the Stockholders’ Representative;
Indemnifying Parties from time to time upon not less than ten (iv10) days prior written notice to Parent; provided, that the Stockholders’ Representative may use not be removed unless the Expense Reserve Payment Parties that are entitled to satisfy costs, expenses a majority of the funds remaining in the Escrow Fund agree in writing to such removal and liabilities to the identity of the substituted agent. A vacancy in the position of the Stockholders’ Representative (in his capacity as may be filled by the Stockholders’ Representative) in connection with matters related Payment Parties that are entitled to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance a majority of the officers and employees of funds remaining in the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company StockholderEscrow Fund. The Stockholders’ Representative shall not be liable Notices or communications to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that from the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence constitute notice to or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductIndemnifying Parties.
Appears in 2 contracts
Sources: Merger Agreement (GXS Worldwide, Inc.), Merger Agreement (Open Text Corp)
Stockholders’ Representative. (ai) In order to efficiently administer certain matters contemplated Each holder of Series B Preferred Stock hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ irrevocably constitutes and appoints Ares as the representative sole and exclusive attorney-in-fact and proxy of the Company Indemnitors for the purposes such holder of this Agreement and the Escrow Agreement Series B Preferred Stock (the “Stockholders’ Representative”).
, with full power of substitution and resubstitution, to exercise or abstain from exercising the rights granted to the holders of Series B Preferred Stock pursuant to this Section 6 (bother than any amendments that are either (i) In the event the Stockholders’ Representative dies, becomes unable adversely disproportionate to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest holders of the Escrow Fund at such time shall be authorized Series B Preferred Stock as compared to and shall select another representative other holders of the Series B Preferred Stock or (ii) adversely affect the definition of Cash Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 7(a)(ii)) to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions fullest extent permitted by law. Any action taken or not taken by the Stockholders’ Representative pursuant to this Agreement Section 6(b) shall not be subject to challenge or input from any such holder of Series B Preferred Stock. Each holder of Series B Preferred Stock hereby revokes any and all previous proxies with respect to such holder’s Series B Preferred Stock and no subsequent proxies (whether revocable or irrevocable) shall be given (and if given, such subsequent proxies shall not be effective) by such holder with respect to the Escrow AgreementSeries B Preferred Stock that conflict with this proxy. This proxy and power of attorney is intended to be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy and is granted for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged and shall be valid and binding on any person to whom the holder of Series B Preferred Stock may transfer any of its Series B Preferred Stock. The power of attorney granted herein is a durable power of attorney and shall survive the dissolution, including bankruptcy, death or incapacity of each holder of Series B Preferred Stock. The provisions of this Section 6(b) shall terminate with respect to a holder of Series B Preferred Stock once such holder no longer owns any agreement between the Series B Preferred Stock. The Stockholders’ Representative and Parent relating may appoint one or more successor representatives to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant subject to the advice approval of counsel shall be conclusive evidence holders of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part a majority of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointmentSeries B Preferred Stock then outstanding.
(ii) Parent shall be entitled Each holder of Series B Preferred Stock hereby irrevocably delegates all power and authority to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to exercise, on behalf of such holder of Series B Preferred Stock, any and all rights of such holder in respect of such Series B Preferred Stock pursuant to this Section 6 (other than any amendments that are either (i) adversely disproportionate to holders of the matters described in this Series B Preferred Stock as compared to other holders of the Series B Preferred Stock or (ii) adversely affect the definition of Cash Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 10.1(e7(a)(ii)), and no party shall have including the granting of any cause waivers or the exercise of action against Parent for any action taken by Parent in reliance upon any consent, approval or voting rights or powers on behalf of such instructions or decisions;holder.
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the holders of Series B Preferred Stock whatsoever with respect to its actions, decisions and determinations, and shall be entitled to assume that all actions, decisions and determinations are fully authorized by reason each and every one of this Agreement a fiduciary relationship in respect the holders of any Company StockholderSeries B Preferred Stock. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and Corporation hereby agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate not, in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any losscapacity as such, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for have any liability imposed by Legal Requirements for gross negligence to the Corporation or willful misconductany of its Affiliates whatsoever with respect to its actions, decisions or determinations.
Appears in 2 contracts
Sources: Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.), Equity Commitment Agreement (Infrastructure & Energy Alternatives, Inc.)
Stockholders’ Representative. (a) In order The Stockholders hereby appoint the Stockholders' Representative to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ act as the representative sole agent of the Company Indemnitors for the purposes of Stockholders in connection with this Agreement and the Escrow Agreement (with the “Stockholders’ Representative”)powers and duties described herein and under the Escrow Agreement.
(b) In the event The Stockholders hereby grant the Stockholders’ ' Representative dies, becomes unable the authority to: (i) dispute or to perform his or her responsibilities hereunder or resigns refrain from such position, disputing any objection by Acquisition Sub to the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized Closing Working Capital Statement pursuant to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes Section 2.6(b) of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions or any claim made by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or Acquisition Sub under the Escrow Agreement as Stockholders’ Representative while acting in good faithor Article VIII of this Agreement; (ii) negotiate and compromise any objection or dispute which may arise under, and any act done to exercise or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any lossrefrain from exercising remedies available under, liability Section 2.6(b) or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms Article VIII of this Agreement or the Escrow Agreement and to sign any releases or other documents with respect to such objection, dispute or remedy, (including the hiring of legal counsel and the incurring of legal fees and costsiii) directly from the Company Stockholders waive any condition contained in accordance with their Pro Rata Share.
(e) By their adoption of this AgreementSection 2.6(b), the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her Section 7.2 or its name and on his, her or its behalf to act according to the terms Article VIII of this Agreement or in the Escrow Agreement, (iv) give any and all consents under Section 2.6(b) or Article VIII of this Agreement or under the Escrow Agreement, and (v) do such things and refrain from doing such things as shall be necessary or appropriate to carry out the provisions of this Agreement or of the Escrow Agreement. The Stockholders’ ' Representative hereby accepts such appointment.
(ii) Parent shall be authorized to act, notwithstanding any dispute or disagreement among the Stockholders, and Acquisition Sub shall be entitled to rely conclusively on the instructions any and decisions given or made all action taken by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or under the Escrow AgreementAgreement without any liability to, except for fraud or willful breach of this Agreement on the part obligation to inquire of, any of the Stockholders’ Representative;
(iv) the . The Stockholders’ ' Representative may use resign at any time, effective upon the Expense Reserve to satisfy costsdesignation, expenses and liabilities by the Stockholders representing a majority in interest of the Stockholders based on their proportionate interest in the Acquisition Sub's Stock received at Closing, of a substitute Stockholders’ ' Representative (and the delivery of a notice to such effect to Acquisition Sub. The Stockholders' Representative may decline to exercise the authority granted to him or her hereunder in his capacity as the Stockholders’ Representative) absence of express instructions from all or any portion determined by him or her to be appropriate of the Stockholders or until he or she is satisfied that any expenses to be incurred by him or her in connection with matters related to this Agreement any such action will be paid or reimbursed by the Stockholders. The Stockholders representing a majority in interest of the Stockholders based on their proportionate interest in the Parent Common Stock received at Closing, may at any time remove the Stockholders' Representative and the Company Ancillary Agreements;
(v) the provisions designate a replacement Stockholders' Representative, in which case, notice of this Section 10.1(e) are independent such removal and severable, are irrevocable and coupled with an interest, and replacement shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors given to Acquisition Sub and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company StockholderEscrow Agent. The Stockholders’ ' Representative while acting strictly in his/her capacity as Stockholders' Representative, shall not be liable have no liability whatsoever to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements than for gross negligence or willful misconduct. The authority of the Stockholders’ ' Representative provided in this Agreement shall not be liable to any Company Stockholder for any apportionment or distribution effective until the rights and obligations of payments made the Stockholders under this Agreement terminate by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, virtue of the sole recourse termination of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess and all rights and obligations of the amount Stockholders to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductAcquisition Sub under this Agreement.
Appears in 2 contracts
Sources: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
Stockholders’ Representative. (a) In order to To administer efficiently administer certain matters contemplated hereby following the Closing, including rights and obligations of the defense or settlement former stockholders of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of Company under this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative former stockholders of the Company Indemnitors for have designated and appointed Mr. Bart A. M. van Hedel, as the purposes of this Agreement and the Escrow Agreement Stockholders’ Representative (the “Stockholders’ Representative”), to serve as their agent and attorney in fact for the limited purposes set forth in this Agreement.
(b) In the event Mr. Bart A. M. van Hedel shall serve as the Stockholders’ Representative diesuntil such person resigns or is otherwise unable or unwilling to serve. If the Stockholders’ Representative shall resign or otherwise become unable or unwilling to serve, becomes unable then a successor representative shall be appointed by the departing Stockholders’ Representative or if such person is not available, by majority vote of the former stockholders of the Company. The substitute Stockholders’ Representative shall provide prompt written notice to perform his or her responsibilities hereunder or resigns from such position, the Parent and the former stockholders of the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy change and such substituted representative shall then be deemed to be a the sole Stockholders’ Representative for all purposes of this Agreement Agreement. Any substitute Stockholders’ Representative shall execute an acceptance of such appointment, which shall be included in the written notice to the Parent and the documents delivered pursuant heretoformer stockholders of the Company of the change in Stockholders’ Representative.
(c) All decisions and actions by The duties of the Stockholders’ Representative pursuant to shall be only those which are specifically provided in this Agreement or and the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and appointing the Stockholders’ Representative, and the Stockholders’ Representative shall not be personally liable for any act done actions or omitted hereunder decisions taken or under the Escrow Agreement as Stockholders’ Representative while acting made in good faith, faith in managing or discharging his duties and any act done or omitted to be done pursuant to responsibilities in accordance with the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified terms hereof and held harmless by thereof.
(d) To the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of extent that the Stockholders’ Representative incurs costs or expenses in the exercise of its office, any amounts remaining in the Stock Escrow subsequent to the Claims Period and arising out that are not subject to any claim that has been made prior to the end of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative Claims Period shall be entitled used first to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against reimburse the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, such costs and expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement then disbursed to the former holders of Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseCommon Stock.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Merger Agreement (Sand Hill It Security Acquisition Corp), Merger Agreement (Sand Hill It Security Acquisition Corp)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated 6.01 The Stockholders, and each of them, hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇appoint ▇▇▇▇ ▇▇▇▇▇ (the "Stockholders' Representative") as the representative their agent to (i) execute and deliver this Escrow Agreement on behalf of the Company Indemnitors Stockholders and to represent, act for and on behalf of, and bind each of the purposes Stockholders in the performance of all of their obligations arising from or relating to this Agreement Escrow Agreement, including, without limitation (a) the execution and the delivery of any document, certificate or agreement required under this Escrow Agreement (to be delivered by the “Stockholders’ Representative”).
; (b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority negotiation and settlement of claims of Allegro in interest respect of the Escrow Fund at such time shall be authorized to Escrowed Property and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 911 of the Reorganization Agreement and the making of any objection to such claims; and (c) the representation of the Stockholders at any arbitration or litigation in respect of the foregoing; (ii) give and receive notices and receive service of process under or pursuant to this Escrow Agreement; and (iii) to represent, shall be binding upon act for, and bind each of the Stockholders in the performance of all of the Company Indemnitors, and no Company Indemnitors shall have the right their obligations arising from or related to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors this Escrow Agreement and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice indemnification provisions of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part Section 11 of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Reorganization Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ ' Representative hereby accepts such appointment.
(ii) Parent 6.02 In the event that the Stockholders' Representative shall die, become incapacitated, resign or otherwise by unable to fulfill his duties hereunder, a successor Stockholders' Representative shall be selected by the Stockholders receiving a majority of the Escrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for any reason, any such Stockholders' Representative may be so removed or replaced by the Stockholders entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any receive a majority of the matters described in this Section 10.1(e)Escrowed Property. Any decision, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions act, consent or decisions;
(iii) all actions, decisions and instructions instruction of the Stockholders’ ' Representative shall constitute a decision of the Stockholders and shall be conclusive and binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitor shall have Allegro and the Escrow Agent may rely upon any cause of action against the Stockholders’ Representative for any action takensuch decision, decision made act, consent or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) ' Representative as being the Stockholders’ Representative may use the Expense Reserve to satisfy costsdecision, expenses and liabilities act, consent or instruction of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Escrow Agreement (Cinnamon Barry A), Escrow Agreement (Cinnamon Barry A)
Stockholders’ Representative. (a) In order Subject to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption penultimate sentence of this AgreementSection 4.1, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, shall serve as the Company Indemnitors who hold a majority in interest exclusive agent of the Escrow Fund at such time shall be authorized to holders of T2 Warrants and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative T3 Warrants for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by transactions contemplated hereby. Without limiting the generality of the foregoing, the Stockholders’ Representative pursuant shall be authorized (a) to execute all certificates, documents and agreements on behalf of and in the name of any of the holders of T2 Warrants and T3 Warrants necessary to effectuate the transactions contemplated hereby, and (b) to negotiate, execute and deliver all amendments, modifications and waivers to this Agreement or the Escrow any other agreement, document or instrument contemplated by this Agreement, including any agreement between the . The Stockholders’ Representative also shall be exclusively authorized to take all actions on behalf of the holders of T2 Warrants and Parent relating to the defense or settlement of T3 Warrants in connection with any claims for which Parent made under this Agreement or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all in respect of the Company IndemnitorsTransactions contemplated hereby, to bring, prosecute, defend or settle such claims, and to make and receive payments in respect of such claims on behalf of the holders of T2 Warrants and T3 Warrants, and no Company Indemnitors holders of T2 Warrants and T3 Warrants shall have the right to object, dissent, protest or otherwise contest take any such decision or action.
(d) As between the Company Indemnitors and action without the Stockholders’ Representative, ’s prior written approval. The Stockholders’ Representative is serving in the capacity as exclusive agent of the holders of T2 Warrants and T3 Warrants hereunder solely for purposes of administrative convenience. The Stockholders’ Representative shall not be liable to any Person for any act done or omitted hereunder or under as the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The holders of shares of Company Stock outstanding immediately prior to the First Effective Time shall indemnify the Stockholders’ Representative shall be entitled to be indemnified and held hold it harmless by the Company Indemnitors against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under the Escrow Agreementhereunder. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative person serving as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use resign or be replaced from time to time by the Expense Reserve to satisfy costs, expenses and liabilities holders of a majority in interest of the StockholdersEscrowed Stock held in the Escrow Account upon not less than ten (10) days’ Representative (in his capacity as the Stockholders’ Representative) in connection prior written notice to Parent and with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severableParent’s written consent, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative which shall not be liable to any Company Stockholder for any action taken unreasonably withheld, conditioned or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductdelayed.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Renaissance Acquisition Corp.), Securities Exchange Agreement (Renaissance Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The Company hereby following appoints, and the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors Company's stockholders shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appoint, the Stockholders' Representative, with full and unqualified power to delegate to one or more Persons the authority granted to him hereunder, to act as the representative each of the Company Indemnitors their agent and attorney-in-fact, with full power of substitution, to take all actions called for the purposes of by this Agreement Section 7 and the Escrow Agreement (and, if applicable, the “Stockholders’ Representative”)Tax Escrow Agreement, on their individual and collective behalf, in accordance with the terms of this Section 7 and the Escrow Agreement and, if applicable, the Tax Escrow Agreement.
(b) In The Stockholders' Representative shall have no liability whatsoever to any existing or former stockholder of the event Company or to any other Person arising out of the Stockholders’ Representative diesmatters contemplated by this Section 7 or the Escrow Agreement or, becomes unable to perform his or her responsibilities hereunder or resigns from such positionif applicable, the Company Indemnitors who hold a majority in interest Tax Escrow Agreement, except only to the extent of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions any Loss caused exclusively by the Stockholders’ Representative pursuant ' Representative's willful misconduct or bad faith. In any event, any such liability shall be limited to this Agreement or the Escrow Agreement, including any agreement between direct damages resulting from such conduct and in no event shall the Stockholders’ ' Representative and Parent relating be liable for special, incidental or consequential damages incurred or suffered by any Person. The Stockholders' Representative shall incur no liability to the defense any existing or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all former stockholder of the Company Indemnitorsor to any other Person with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other documents believed by him to be genuine and no Company Indemnitors shall have the right to objectduly authorized. The Stockholders' Representative may, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or in all questions arising under the Escrow Agreement as Stockholders’ Representative while acting in good faithand, and any act done or omitted to be done pursuant to if applicable, the Tax Escrow Agreement, rely on the advice of counsel shall be conclusive evidence of such and for anything done, omitted or suffered in good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ ' Representative in connection with actions taken by based on such advice, the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ ' Representative shall not be liable to any existing or former stockholder of the Company Stockholder for any action taken or omitted by it hereunder or under to any other document contemplated herebyPerson.
(c) In the event of the death or permanent disability of the Stockholders' Representative, or in connection therewithhis resignation, except that the a successor Stockholders’ ' Representative shall not be relieved of any liability imposed appointed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess a majority vote of the amount holders (other than Siemens and its subsidiaries) of outstanding capital stock of the Company immediately prior to which they are determined the Effective Time, with each such stockholder (or his or her successors or assigns) to have been entitled. Each be given a vote equal to the number of votes represented by the shares of capital stock of the Company Stockholder acknowledges and agrees that held by such stockholder immediately prior to the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft), Merger Agreement (Entex Information Services Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the By adoption of this Agreement, execution of a Company Letter of Transmittal, and the Company Indemnitors acceptance of any portion of the Merger Consideration, each Equity Holder hereby designates the Stockholders’ Representative to execute any and all instruments or other documents on behalf of such Equity Holder, and to do any and all other acts or things on behalf of such Equity Holder, which the Stockholders’ Representative may deem necessary or advisable, or which may be required pursuant to this Agreement, the Ancillary Agreements or otherwise, in connection with the consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including, but not limited to, the exercise of the power to: (i) execute the Ancillary Agreements on behalf of each Equity Holder; (ii) act for each Equity Holder with respect to any Merger Consideration Adjustment and the Ancillary Agreements; (iii) give and receive notices and communications to or from the Parent Parties and/or the Escrow Agent relating to this Agreement, the Ancillary Agreements or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as given or received by such Equity Holders individually); and (iv) take all actions necessary or appropriate in the representative judgment of the Company Indemnitors Stockholders’ Representative for the purposes accomplishment of the foregoing. The Stockholders’ Representative shall have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement or the Ancillary Agreements and all rights or obligations arising hereunder or thereunder. The Equity Holders shall be bound by all actions taken and documents executed by the Stockholders’ Representative in connection with this Agreement and the Escrow Agreement (Ancillary Agreements, and the “Parent Parties shall be entitled to rely on any action or decision of the Stockholders’ Representative”). Subject to costs and expenses paid pursuant to Section 9.13, the Stockholders’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each Equity Holder.
(b) In performing the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority functions specified in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable to any Equity Holder for any act done damages, losses or omitted hereunder or under liabilities whatsoever, other than actual losses that are determined by a final, non-appealable judgement of Delaware court to have been primarily caused by the Escrow Agreement as willful misconduct of the Stockholders’ Representative. Each Equity Holder shall severally (based on each such Equity Holder’s Pro Rata Percentage), and not jointly, indemnify and hold harmless the Stockholders’ Representative while acting in good faith, from and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense loss incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder (other than losses that are determined by a final, non-appealable judgement of Delaware court to have been primarily caused by the willful misconduct of the Stockholders’ Representative). In connection with this Agreement, and any instrument, agreement or under document relating hereto or thereto, and in exercising or failing to exercise all or any of the Escrow Agreement. The powers conferred upon the Stockholders’ Representative hereunder (i) the Stockholders’ Representative shall incur no responsibility whatsoever to any Equity Holder by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with such other agreement, instrument or document, excepting only responsibility for any act or failure to act which represents willful misconduct and (ii) the Stockholders’ Representative shall be entitled to recover rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative error in connection with actions taken by judgment or other act or omission of the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders such advice shall in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) no event subject the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf to act according liability to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointmentany Equity Holder.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(fc) From and after the Closing, Parent shall cause the Surviving Company to provide if the Stockholders’ RepresentativeRepresentative determines that the amounts in the Administrative Expense Account are insufficient to satisfy current or future (whether realized or potential) Administrative Costs, at his expense, with reasonable access it shall be entitled to information about withhold on a pro rata basis from amounts otherwise due to the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights Equity Holders under this Agreement.
(g) Agreement or under any Ancillary Agreement amounts as it deems necessary to provide for such Administrative Costs; provided that such amounts shall be deemed to be included in the Administrative Expense Account. The Stockholders’ Representative shall not have by reason of this Agreement or otherwise a fiduciary relationship in respect of any Company Stockholder. Equity Holder.
(d) The Stockholders’ Representative shall not be liable to any Company Stockholder grant of authority provided for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution herein (i) is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions coupled with an interest and shall be entitled to take such actions as irrevocable and survive the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify death, incompetency, bankruptcy or liquidation of any Equity Holder and hold (ii) shall survive the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as consummation of the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconducttransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Federal Street Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of As used in this Agreement, the Company Indemnitors "Stockholders' Representative" shall be deemed to have designated mean Gary ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ister or any person appointed as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “a successor Stockholders’ Representative”)' Representative pursuant to Section 1.06(b) hereof.
(b) In During the event period ending upon the date when all obligations under this Agreement have been discharged (including all indemnification obligations hereunder), the Stockholders who, immediately prior to the Closing, held Company Common Stock representing an aggregate number of shares of Company Common Stock which exceeded 50% of the amount of such Company Common Stock outstanding immediately prior to such time (a "Majority"), may, from time to time upon written notice to the Stockholders’ ' Representative and GRS, remove the Stockholders' Representative or appoint a new Stockholders' Representative to fill any vacancy created by the death, incapacitation, resignation or 3 8 removal of the Stockholders' Representative. Furthermore, if the Stockholders' Representative dies, becomes unable to perform his incapacitated, resigns or her responsibilities hereunder or resigns from such positionis removed by a Majority, the Majority shall appoint a successor Stockholders' Representative to fill the vacancy so created. If the Majority is required to but has not appointed a successor Stockholders' Representative within 20 business days from a request by GRS to appoint a successor Stockholders' Representative, GRS shall have the right to appoint a Stockholders' Representative to fill any vacancy so created, and shall advise all those who were holders of Company Indemnitors who hold a majority in interest Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Escrow Fund at such time Majority of any successor Stockholders' Representative shall be authorized provided to and GRS promptly after it shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretohave been effected.
(c) All decisions The Stockholders' Representative shall be authorized to take any action and actions by the Stockholders’ Representative pursuant to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the Escrow Agreement, including any agreement between documents referred to in this Agreement (an "Instrument") which the Stockholders’ ' Representative and Parent relating determines to be necessary, appropriate or desirable, and, in connection therewith, to hire or retain, at the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all sole expense of the Company IndemnitorsStockholders, such counsel, investment bankers, accountants, representatives and no Company Indemnitors other professional advisors as he determines in his sole and absolute discretion to be necessary, advisable or appropriate in order to carry out and perform his rights and obligations hereunder. Any party receiving an Instrument from the Stockholders' Representative shall have the right to objectrely in good faith upon such Instrument, dissent, protest or otherwise contest any such decision or actionand to act in accordance with the Instrument without independent investigation.
(d) As between GRS shall have no liability to any Stockholder or otherwise arising out of the Company Indemnitors and acts or omissions of the Stockholders’ ' Representative or any disputes among the Stockholders or with the Stockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders’ ' Representative shall not be liable for to satisfy any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant obligations it might have to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled Stockholders under this Agreement, any agreement referred to be indemnified and held harmless by the Company Indemnitors against any loss, liability herein or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Shareotherwise.
(e) By their adoption of this AgreementThe Stockholders shall indemnify, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) defend and hold harmless the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossand all claims, liability demands, actions, suits, causes of action, damages, costs and expenses (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or expense arising in connection with any act or omission as brought against the Stockholders’ ' Representative by any person arising out of the acts or omissions of the Stockholders' Representative or any disputes among the Stockholders, unless such Claims allegedly occurred as a result of the willful misconduct or negligence by the Stockholders' Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closingprovisions of this Agreement (including, including the defense without limitation, Subsection 11.04 and Section 12 hereof) and all other documents and instruments executed and delivered, or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9otherwise furnished, by the adoption of this AgreementStockholders in connection herewith (including, without limitation, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇escrow agreement in the form of Exhibit A attached --------- hereto (the "Escrow Agreement")), the Stockholders hereby designate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions and to take all action necessary to be made or taken by or on behalf of the Stockholders under this Agreement or the Escrow Agreement, (ii) to give and receive all notices required or permitted to be given under this Agreement or the Escrow Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement or the Escrow Agreement.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Company Indemnitors who hold Effective Date, a majority in interest of the Escrow Fund at such time shall be authorized to and shares of capital stock of Vista as set forth on Schedule I attached hereto ---------- shall select another representative to fill such vacancy vacancy, and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant heretoEscrow Agreement.
(cd) All decisions and actions by the Stockholders’ ' Representative pursuant to in connection with this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Agreement shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Peritus shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ ' Representative as to any of actions required or permitted to be taken by the matters described in this Section 10.1(e)Stockholders' Representative hereunder or under the Escrow Agreement, and no party hereunder shall have any cause of action against Parent Peritus for any action taken by Parent Peritus in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or under the Escrow Agreement, except for fraud or willful breach of this Agreement on or the part of Escrow Agreement by the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) Subsection 1.12 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement or the Escrow Agreement;
(iv) remedies available at law for any breach of the provisions of this Subsection 1.12 are inadequate; therefore, Peritus and Vista shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Peritus or Vista brings an action to enforce the provisions of this Subsection 1.12; and
(viv) the provisions of this Section 10.1 Subsection 1.12 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement or the Escrow Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption execution and delivery of this Agreement, each of the Company Indemnitors shall be deemed to have designated Stockholders hereby irrevocably constitute and appoint ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).) as his, her or its true and lawful agent and attorney-in-fact with full power of substitution to act in the name, place and stead of such Stockholders with respect to the transfer of the shares of Stock owned by such Stockholders to the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of such Stockholders in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with this Agreement or otherwise relating to the transactions contemplated by this Agreement, including, without limitation, the power:
(a) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to defend, negotiate, assert, and compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
(b) In to execute and deliver all amendments, waivers, ancillary agreements (including the event Escrow Agreement), assignments, certificates and documents, and take any and all actions, that the Stockholders’ Representative diesdeems necessary or appropriate in connection;
(c) to execute and deliver all consents, becomes unable amendments and waivers to perform his this Agreement that the Stockholders’ Representative deems necessary or her responsibilities hereunder appropriate, whether prior to, at or resigns from such positionafter the Closing;
(d) to receive funds, make payments of funds, and give receipts for funds;
(e) to receive funds for the Company Indemnitors who hold a majority in interest payment of expenses of the Escrow Fund at Stockholders and apply such time shall be authorized funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and shall select another representative completely as the Stockholders could do if personally present; and
(g) to fill such vacancy and such substituted representative receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and the Buyer and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. All notices required to be a made or delivered by the Buyer to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all purposes notice requirements of the Buyer to the Stockholders with respect thereto. The Stockholders hereby confirm all actions that the Stockholders’ Representative shall do or cause to be done by virtue of its appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by Escrow Agreement in the manner the Stockholders’ Representative pursuant believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement and the Escrow Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance of its duties under this Agreement or the Escrow Agreement, including any agreement between other than loss or damage arising from willful violation of law or gross negligence in the performance of its duties under this Agreement. The Stockholders agree jointly and severally to indemnify, defend and hold harmless the Stockholders’ Representative from and Parent relating to the defense or settlement of against any claims for which Parent or the Surviving Company and all loss, damage, liability and expense that may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, incurred by the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The its appointment as Stockholders’ Representative shall be entitled to recover under this Agreement (except such as may result from the Stockholders’ Representative’s willful violation of law or gross negligence in the performance of its duties under this Agreement), including the legal costs of defending itself against any out-of-pocket costs claim or liability in connection with its performance under this Agreement and expenses reasonably incurred all other documents and agreements executed and delivered by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreedincluding, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and without limitation the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e)Representative, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement each Stockholder and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except Buyer expressly acknowledge that the Stockholders’ Representative shall not be relieved have no authority or responsibility to act on behalf of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act claim, action or omission as the proceeding initiated against such Stockholder pursuant to a breach by such Stockholder of such Stockholders’ Representativeindividual representations, except for any liability imposed warranties or covenants hereunder. All decisions by Legal Requirements for gross negligence or willful misconductthe Stockholder’s Representative shall be binding upon all Stockholders.
Appears in 1 contract
Stockholders’ Representative. (a) In order Each Stockholder who votes for or consents to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this AgreementAgreement (each, an “Approving Stockholder“) and the Company Indemnitors approval of the transactions contemplated hereby, including the Merger, shall be deemed to have designated irrevocably appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and, if ▇▇. ▇▇▇▇▇▇▇ is unable or unwilling for any reason to continue, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇) as the representative Stockholders’ Representative on his or her behalf, with the same effect as if each of such Approving Stockholder had individually appointed such Stockholders’ Representative, with full power and authority to act in the Company Indemnitors name of and for the purposes and on behalf of each Approving Stockholder with respect to all matters arising in connection with, or related to, this Agreement and the Escrow Agreement (and the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest transactions contemplated hereby and thereby. Each of the Escrow Fund at such time shall be authorized matters referred to and shall select another representative to fill such vacancy and such substituted representative in this Section 10.17 shall be deemed to be a Stockholders’ Representative have been accepted, agreed upon, acknowledged or consented to, as applicable, by each Approving Stockholder upon the vote or consent by such Approving Stockholder for all purposes the adoption of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by approval of the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreementtransactions contemplated hereby, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faithMerger. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
has been appointed (i) the Stockholders’ Representative is hereby appointed agent and constituted the true and lawful attorney-in-fact of each Company IndemnitorApproving Stockholder, with full power of substitution, and with full capacity and authority in hisits sole discretion, her or its to act in the name of and for and on hisbehalf of each Approving Stockholder in connection with all matters arising out of, her resulting from, contemplated by or its behalf related or incident to act according this Agreement and the Escrow Agreement, and (ii) the agent for service of process for each Approving Stockholder, and the Approving Stockholders have irrevocably consented to the terms service of any and all process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Stockholders’ Representative. Without limiting the generality of the foregoing, the power of the Stockholders’ Representative shall include the power to represent each Approving Stockholder with respect to all aspects of this Agreement and the Escrow Agreement, which power shall include, without limitation, the power to (i) receive any payment or transfer to be made pursuant to this Agreement or the Escrow Agreement, (ii) waive any and all conditions of this Agreement or the Escrow Agreement, (iii) amend this Agreement or the Escrow Agreement and any agreement executed in connection herewith or therewith in any respect, (iv) bring, assert, defend, negotiate or settle any claims or actions for indemnity pursuant to ARTICLE IX hereof, (v) retain legal counsel and be reimbursed by the Approving Stockholders for all fees, expenses and other charges of such legal counsel, (vi) receive notices or other communications, (vii) deliver any notices, certificates or other documents required, and (viii) take all such other action and to do all such other things as the Stockholders’ Representative deems necessary or advisable with respect to this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent and Merger Sub shall be entitled have the absolute right and authority to rely conclusively on upon the instructions and decisions given acts taken or made omitted to be taken by the Stockholders’ Representative on behalf of the Approving Stockholders, and the Parent shall have no duty to inquire as to any the acts and omissions of the matters described in this Section 10.1(e), Stockholders’ Representative. Each Approving Stockholder has acknowledged and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
agreed that (iiii) all actionsdeliveries by the Parent, decisions and instructions of including, without limitation, any payment, to the Stockholders’ Representative shall be conclusive and binding upon all deemed deliveries to the Stockholders, (ii) the Parent shall not have any liability with respect to any aspect of the Company Indemnitors, and no Company Indemnitor shall have any cause distribution or communication of action against such deliveries between the Stockholders’ Representative for and any action taken, decision Stockholder and (iii) any disclosure made or instruction given by to the Stockholders’ Representative by or on behalf of the Parent shall be deemed to be a disclosure made to each Stockholder. Each Approving Stockholder has agreed that any payment made by or on behalf of the Parent to the Stockholders’ Representative on any Stockholder’s behalf (including, without limitation, payments under this Agreement or the Escrow Agreement) shall be deemed a direct payment to such Stockholder, except and such Stockholder shall have no recourse to the Parent in the event that such payment is not delivered to such Stockholder by the Stockholders’ Representative for fraud any reason. In the event each of ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇▇ refuses to, or willful breach is no longer capable of, serving as the Stockholders’ Representative hereunder, the Approving Stockholders shall promptly appoint a successor Stockholders’ Representative who shall be reasonably acceptable to the Parent and shall thereafter be a successor Stockholders’ Representative hereunder, and the Stockholders’ Representative shall serve until such successor is duly appointed and qualified to act hereunder.
(b) The Approving Stockholders shall indemnify, defend and hold harmless the Stockholders’ Representative from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and third party expenses which the Stockholders’ Representative may suffer or incur by reason of any action, claim or proceeding brought against the Stockholders’ Representative arising out of or relating in any way to this Agreement, the Escrow Agreement or any transaction to which this Agreement on relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the part willful misconduct or gross negligence of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Visant Corp)
Stockholders’ Representative. (a) In order By virtue of the Company Stockholder Approval and/or delivery of letters of transmittal to efficiently administer certain matters contemplated hereby following Parent in accordance with Section 2.11.1, and without any further act of the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this AgreementCompany Holders, the Company Indemnitors shall Holders will be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appointed Fortis Advisors LLC (previously defined as the representative of the Stockholders’ Representative) as agent and attorney-in-fact for each Company Indemnitors Holder for the purposes of all matters relating to this Agreement and to the Escrow Agreement (Agreement, including to give and receive notices and communications; to bind the “Company Holders to the terms of the Escrow Agreement; to authorize delivery of cash from the Escrow Fund or otherwise in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries; to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing, including without limitation, employ and obtain the advice of legal counsel, accountants and other professional advisors as the Stockholders’ Representative”), in his, her or its sole discretion, deems necessary or advisable in the performance of his, her or its duties as the Stockholders’ Representative and to rely on their advice and counsel.
(b) In the event the The Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, may be changed by the Company Indemnitors who hold a majority in interest of the Escrow Fund at such Holders from time shall be authorized to and shall select another representative time upon not less than thirty (30) days’ prior written notice to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, provided that Company Holders holding a majority of the outstanding Company Shares as of the Closing Date agree to such removal of Fortis Advisors LLC and any successors thereto and to the identity of the substituted agent. A Stockholders’ Representative may resign at any time upon giving at least 30 days’ written notice to the Company Holders and Parent, except that no such resignation will become effective until the appointment of a successor Stockholders’ Representative. Upon resignation of a Stockholders’ Representative, Company Holders holding a majority of the outstanding Company Shares as of the Closing Date will agree on a successor Stockholders’ Representative thereto within 30 days after receiving such notice. If Company Holders holding a majority of the outstanding Company Shares as of the Closing Date fail to agree upon a successor Stockholders’ Representative within such time, the resigning Stockholders’ Representative will have the right to appoint a successor Stockholders’ Representative, or if a Stockholders’ Representative is not designated within forty-five (45) days after receipt of the initial notice, Parent will designate a successor Stockholders’ Representative. Any successor Stockholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Stockholders’ Representative as if originally named as Stockholders’ Representative and thereafter the resigning Stockholders’ Representative will be discharged from any further duties and Liability under this Agreement. No bond will be required of any Stockholders’ Representative. Notices or communications to or from the Stockholders’ Representative will constitute notice to or from each Company Holder for all matters relating to this Agreement and to the Escrow Agreement.
(c) During the Escrow Period and any period following the Escrow Period during which there is a bona fide dispute between Parent and/or the Surviving Corporation on the one hand, and the Company Holders on the other hand, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company Corporation (including by electronic means, to the extent available) and Parent and the reasonable assistance of the Surviving Corporation’s and Parent’s officers and employees of the Surviving Company for purposes of performing his its duties and exercising his its rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewithprovided, except that the Stockholders’ Representative shall treat confidentially and not be relieved disclose any nonpublic information from or about the Surviving Corporation or Parent to anyone (except on a need to know basis to individuals (identified to the Surviving Corporation and Parent in writing in advance) who agree in writing to treat such information confidentially).
(d) A decision, act, consent, or instruction of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not relating to this Agreement or the Escrow Agreement will constitute a decision of the Company Holders and will be obligated to take final, binding, and conclusive upon each such holder. Indemnified Persons may rely upon any actions and shall be entitled to take such actions as decision, act, consent, or instruction of the Stockholders’ Representative deems appropriate as being the decision, act, consent, or instruction of the Company Holders. Parent, Surviving Corporation, and all other Indemnified Persons are hereby relieved from any Liability to any Person for any acts done by them in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossaccordance with such decision, liability act, consent, or expense arising in connection with any act or omission as instruction of the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Digimarc CORP)
Stockholders’ Representative. (a) In order The Stockholders’ Representative is hereby constituted and appointed by SPC for and on behalf of the SPC Stockholders, with full and unqualified power to efficiently administer certain matters contemplated hereby following delegate to one or more Persons the Closingauthority granted to it hereunder, including to act as each of their agent and attorney-in-fact, with full power of substitution, to take all actions after the defense or settlement of any Effective Time with Excluded Liabilities and Excluded Taxes and indemnification claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption under Article IX of this Agreement and the Escrow Agreement, on their individual and collective behalf, as such Stockholders’ Representative shall deem necessary and appropriate in connection with the Company Indemnitors shall be deemed transactions contemplated under this Agreement and the Escrow Agreement, including, without limitation, the power:
(1) to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative perform all of the Company Indemnitors for duties and obligations of the purposes Stockholders’ Representative concerning indemnification claims under Article IX of this Agreement and the Escrow Agreement (and to execute, deliver and perform all documents contemplated herein or therein by the “Stockholders’ Representative”).;
(b2) In to distribute to the event SPC Stockholders any amounts to be released or paid to the Stockholders’ Representative dies, becomes unable (for the benefit of the SPC Stockholders) pursuant to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest terms of the Escrow Fund at such time shall be authorized Agreement and other escrows related to the Cable and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Kansas City Transactions, unless the Stockholders’ Representative for concludes that existing funds at its disposal are not sufficient to meet known or threatened claims under Section 9.2(c)(3), in which case the Stockholders’ Representative may reserve and retain some or all purposes of such funds as it determines in the exercise of its good faith business judgment;
(3) to perform all duties of the Indemnified Party (if the Stockholders’ Representative or any SPC Stockholder is the Indemnified Party) or to perform all the duties of the Indemnifying Party (if the Stockholders’ Representative is the Indemnifying Party), as set forth in Article IX of this Agreement, including, without limitation, prosecution of all Proceedings and the prosecution or conduct of the defense of any claims or actions described herein, and the compromise and settlement of any such claims or actions, including the making of any payment required thereby;
(4) to perform all duties and resolve all matters in connection with the Escrow Agreement, including, without limitation, the prosecution or conduct of the defense of any matter or Claim (as defined therein), and the compromise and settlement of any such matter or Claim, including the making of any payment required thereby;
(5) to hire counsel and other professionals and third parties on behalf of himself and/or the SPC Stockholders to represent the interests of the Stockholders’ Representative and/or the SPC Stockholders in connection with this Agreement and the documents delivered pursuant hereto.Escrow Agreement, and the right to incur such other expenses as the Stockholders’ Representative deems appropriate to protect the interests of himself and the SPC Stockholders and to carry out the terms thereof and hereof;
(c6) All decisions to give and actions receive all notices and communications to be given or received concerning any indemnification claim under Article IX of this Agreement or the Escrow Agreement and to receive service of process in connection with any indemnification claim under Article IX of this Agreement or any Claim under the Escrow Agreement; and
(7) to take any other action concerning any indemnification claim under Article IX of this Agreement or the Escrow Agreement and the transactions contemplated herein and therein as the Stockholders’ Representative in his sole and absolute discretion deems appropriate. Notwithstanding anything to the contrary contained herein, (i) the Stockholders’ Representative shall have no duties or responsibilities under this Agreement except for those expressly set forth herein, (ii) no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any SPC Stockholder shall otherwise exist against or with respect to the Stockholders’ Representative in its capacity as such and (iii) any claim against the Stockholders’ Representative made in accordance with the provisions of this Agreement by any Person shall be satisfied solely from the assets owned or held by the Stockholders’ Representative pursuant to this Agreement in trust or otherwise and amounts held under the Escrow Agreement, including any agreement between and no trustee, member, stockholder, director, officer or employee of the Stockholders’ Representative shall have any personal liability with respect to any such claim. All decisions and Parent relating to acts by the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Stockholders’ Representative shall be binding upon all of the Company Indemnitors, SPC Stockholders and no Company Indemnitors SPC Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(db) As between the Company Indemnitors and the Stockholders’ Representative, Acquiror shall be entitled to deal exclusively with the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted on all matters relating to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 Article IX hereof and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent , and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given any document executed or made purported to be executed on behalf of any SPC Stockholder by the Stockholders’ Representative as Representative, and on any other action taken or purported to any be taken on behalf of the matters described SPC Stockholders by the Stockholders’ Representative, as fully binding upon such SPC Stockholders.
(c) As provided in the Written Consent, the approval by the SPC Stockholders of the Merger thereunder includes the approval of the terms of the provision of this Section 10.1(e)2.15, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actionsincluding, decisions and instructions without limitation, the appointment of the Stockholders’ Representative.
(d) The SPC Stockholders formerly holding more than 50% of the SPC Stock as of Closing (a “Majority in Interest”) may replace the Stockholders’ Representative and designate a successor Stockholders’ Representative.
(e) The Stockholders’ Representative is authorized and empowered to construe this Agreement and the Escrow Agreement and its construction shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the SPC Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement Upon receipt of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇Stockholders Approval, Z▇▇▇▇▇▇ ▇▇▇▇▇ shall have been appointed by the Stockholders as the representative of the Company Indemnitors agent and attorney-in-fact for the purposes of each Stockholder, (i) to give and receive notices and communications to Purchaser for any purpose under this Agreement and the Additional Agreements, (ii) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or other disputes arising under or related to this Agreement, (iii) to enter into and deliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to the “Stockholders’ Representative”).
Stockholders of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (bv) In to act on behalf of Stockholders in accordance with the event provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, for the Company Indemnitors who hold a majority in interest accomplishment of the Escrow Fund at such foregoing. Such agency may be changed by the Stockholders from time shall be authorized to and shall select another representative time upon no less than twenty (20) days prior written notice to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by Purchaser, provided, however, that the Stockholders’ Representative pursuant may not be removed unless holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or the Escrow Agreement, including any agreement between change of the Stockholders’ Representative and Parent relating shall not be effective until written notice is delivered to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Purchaser. No bond shall be binding upon all required of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithfaith and in the exercise of reasonable business judgment. A decision, and any act done act, consent or omitted to be done pursuant to instruction of the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders of the Company and shall be entitled to be indemnified final, binding and held conclusive upon each of the Stockholders. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless by the Company Indemnitors against any loss, liability liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her his duties hereunder or under the Escrow Agreementhereunder. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described Notwithstanding anything in this Section 10.1(e)14.15 to the contrary, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and have no Company Indemnitor shall have obligation or authority with respect to any cause of action indemnification claims against the Stockholders’ Representative for any action taken, decision a Stockholder made or instruction given by the Stockholders’ Representative Purchaser under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise11.2.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Hunter Maritime Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The Stockholders hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇designate S▇▇▇▇▇ ▇▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”) and authorize such Stockholders’ Representative (i) to take all action necessary in connection with the Closing (including the satisfaction or waiver of any closing condition), (ii) to assert, defend and/or settle any claim for indemnification pursuant to Article VII or Article VIII, (iii) to give and receive all notices required to be given under this Agreement, (iv) to serve as attorney-in-fact and agent for and on behalf of each Stockholder and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement and all Ancillary Agreements.
(b) In the event that the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Company Indemnitors who hold Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares as set forth on Schedule 1.1 shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow AgreementRepresentative, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to including, without limitation, those set forth above in Section 9, 1.4(a) shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ Representative as to all decisions and actions by the Stockholders’ Representative, including, without limitation, those set forth above in Section 1.4(a) or any of other actions required to be taken by the matters described in this Section 10.1(e)Stockholders’ Representative hereunder, and no party Party shall have any cause of action against Parent Buyer for any action taken by Parent Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow any Ancillary Agreement, except for fraud or willful breach of this Agreement on the part of or any Ancillary Agreement by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.4 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor either Stockholder may have in connection with the transactions contemplated by this Agreement or any Ancillary Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.4 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.4; and
(viv) the provisions of this Section 10.1 1.4 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The Stockholders’ Representative hereby following accepts the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appointment as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”)” pursuant to this Agreement effective on the date hereof, in accordance with the terms set forth in this Section 5.15. The appointment of the Stockholders’ Representative shall be binding upon the Stockholders and their respective heirs, executors, successors and permitted assigns.
(b) In the event the Stockholders’ Representative dies, becomes unable Solely with respect to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority each specific instance in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and referencing the Stockholders’ Representative, the Stockholders’ Representative shall not is authorized to act on behalf of each Stockholder in each such Stockholder’s name, place and stead, in any and all capacities, and to do and perform every act and thing required or permitted to be liable for any act done by such Stockholder in connection therewith, as fully to all intents and purposes as such Stockholder might or omitted hereunder or under could do in person. For clarity, the Escrow Agreement as Stockholders’ Representative while acting in good faithshall not, and is not authorized to, take any act done action with respect to a Stockholder in any instance hereunder not specifically referencing the Stockholders’ Representative including, without limitation, with respect to Article VII or omitted Section 10.5.
(c) The Stockholders’ Representative can be removed by the Stockholders for any or no reason, but only by delivery to be done pursuant to Purchaser of a written instrument signed by all Stockholders (or their respective heirs, executors or successors-in-interest) at least ten (10) days in advance of the advice of counsel shall be conclusive evidence effective date of such good faithremoval. The Stockholders’ Representative may resign for any reason or no reason at any time upon at least ten (10) days prior written notice to Purchaser.
(d) If the Stockholders’ Representative is dissolved, voluntarily or involuntarily, then a replacement Stockholders’ Representative shall be entitled to be indemnified designated by unanimous written consent of the Stockholders (or their respective heirs, executors or successors-in-interest) and held harmless by such replacement Stockholders’ Representative shall notify Purchaser in writing of such designation promptly upon such designation, and any such replacement Stockholders’ Representative will have the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part full power and authority of the Stockholders’ Representative and arising out hereunder.
(e) The signature of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled deemed to recover be the signature of all or any out-of-pocket costs Stockholders, and expenses reasonably incurred the Stockholders shall be bound by the terms of any documents and agreements executed and delivered by the Stockholders’ Representative on their behalf as though they were actual signatories thereto.
(f) Purchaser is entitled to deal exclusively with the Stockholders’ Representative on all authorized matters (as set forth in connection with Section 5.15(b)) relating to the Stockholders. With respect to such matters, (i) Purchaser and all other Persons shall be entitled to rely, without any investigation or inquiry, upon all actions taken by the Stockholders’ Representative pursuant to as having been taken upon the terms authority of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all conclusively deemed to be the action of the Company IndemnitorsStockholders, and no Company Indemnitor Purchaser shall not have any cause of liability or responsibility to any Stockholder for any action against taken in reliance thereon , (iii) Purchaser may rely entirely on its dealings with, and notices to and from, the Stockholders’ Representative for to satisfy any obligations Purchaser might have to any Stockholder with respect to such matters, and (iv) Stockholders jointly and severally agree to pay, and to indemnify and hold harmless Purchaser and its directors, shareholders, officers, employees, agents, Affiliates, successors and assigns from and against any and all Losses that they may suffer or sustain as a result of any claim by any Person that an action taken, decision made or instruction given taken by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part behalf of the Stockholders’ Representative;
(iv) Stockholders with respect to such matters is not binding on, or enforceable against, the Stockholders’ Representative may use . Purchaser will not have any liability or obligation arising out of the Expense Reserve to satisfy costs, expenses and liabilities acts or omissions of the Stockholders’ Representative (in his capacity as or any disputes between or among the Stockholders and the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standard Diversified Inc.)
Stockholders’ Representative. (ai) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Stockholder Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful as representative, attorney-in-fact of each Company Indemnitorand agent, with full power in his, her or its name and on his, her or its behalf of substitution to act according in the name, place and stead of each Stockholder to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have to act on behalf of each Stockholder in any cause amendment of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made litigation or instruction given by the Stockholders’ Representative under arbitration involving this Agreement or the Escrow Agreement, except for fraud any Ancillary Agreements and to do or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses refrain from doing all such further acts and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interestthings, and to execute all such documents, as such Stockholder Representative shall be enforceable notwithstanding deem necessary or appropriate in conjunction with any rights or remedies that any Company Indemnitor may have in connection with of the transactions contemplated by this Agreement, including the power:
(i) to take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated by this Agreement and the Ancillary Agreements;
(ii) to negotiate, execute and deliver all statements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement (it being understood that a Stockholder shall execute and deliver any such documents which the Stockholder Representative agrees to execute);
(iii) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with the any claims under this Agreement, including service of process in connection with arbitration; and
(viiv) to take all actions or refrain from doing any further act or deed on behalf of the provisions Stockholders which the Stockholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors Agreement as fully and assigns of each completely as a Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholder could do if personally present.
(fj) From and after Notwithstanding the Closingenumerated powers granted to the Stockholder Representative in Section 9.1(a) above, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders to consummate the transactions set forth in Section 5.3(f);
(k) If the Stockholder Representative becomes unable to serve as Stockholder Representative, such other Person or Persons as may be designated by reason him who shall be one of the Stockholders holding the majority of the Purchaser Common Stock, shall succeed as the Stockholder Representative.
(l) The Stockholder Representative shall not be held liable by any of the Stockholders for actions or omissions in exercising or failing to exercise all or any of the power and authority of the Stockholder Representative pursuant to this Agreement a fiduciary relationship Agreement, except in respect the case of any Company Stockholderthe Stockholder Representative's gross negligence, bad faith or willful misconduct. The Stockholders’ Stockholder Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts that it reasonably determines to be experienced in the matter at issue, and will not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under to be taken in good faith based on such advice. The Stockholders will, severally and not jointly, indemnify (in accordance with their pro rata percentages) the Stockholder Representative from any other document contemplated hereby, or in connection therewithlosses arising out of its serving as the Stockholder Representative hereunder, except that for losses arising out of or caused by the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for Stockholder Representative's gross negligence negligence, bad faith or willful misconduct. The Stockholders’ Stockholder Representative shall is serving in his capacity as such solely for purposes of administrative convenience, and is not be personally liable to any Company Stockholder in such capacity for any apportionment or distribution of payments made by it in good faiththe obligations of the Stockholders hereunder, and if any the Purchaser and the Company agree that they will not look to the personal assets of the Stockholder Representative, acting in such apportionment or distribution is subsequently determined to have been made in errorcapacity, for the sole recourse satisfaction of any Company Stockholder obligations to which payment was due, but not made, shall be performed by the Stockholders hereunder except to recover from the other Company Stockholders any payment in excess extent of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossRepresentative's gross negligence, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence bad faith or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. The Stockholders’ Representative represents and warrants that (ai) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement he is executing this Amendment as Stockholders’ Representative on behalf of any claims for which Parent Indemnitees may be entitled to indemnification himself and all other Former Holders pursuant to Section 9, by 8.1 of the adoption of this Merger Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as written agreement between him and the representative other Former Holders contemplated by Section 8.1(e) of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event Merger Agreement, as heretofore amended or supplemented, as well as any other written agreement that the Stockholders’ Representative dies, becomes unable to perform his may have with any or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitorsother Former Holders (collectively, the “Former Holder Agreements”), and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(iii) the Stockholders’ Representative is hereby appointed has taken any and constituted all actions and receive any and all approvals needed from the true and lawful attorney-in-fact of each Company IndemnitorFormer Holders, with full power in his, her or its name and on his, her or its behalf to act according pursuant to the terms of this Agreement Former Holder Agreements or otherwise, which required actions and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters approvals are described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related Exhibit A to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severableAmendment, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except such that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable is fully authorized to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess execute this Amendment on behalf of the amount to which they are determined to have been entitledFormer Holders and it is valid, binding and enforceable against the Former Holders in accordance with its terms. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretionCERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossSUCH OMITTED PORTIONS, liability or expense arising in connection with any act or omission as the Stockholders’ RepresentativeWHICH ARE MARKED WITH BRACKETS [ ] AND AN ASTERISK*, except for any liability imposed by Legal Requirements for gross negligence or willful misconductHAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Acorda Therapeutics Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters By approving this Agreement and the transactions contemplated hereby following and delivering a Letter of Transmittal, each Company Stockholder shall have irrevocably authorized, directed and appointed the ClosingStockholders’ Representative to act as sole and exclusive agent, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the attorney-in-fact and representative of the Company Indemnitors for the purposes Stockholders, with full power of substitution with respect to all matters under this Agreement and the Escrow Agreement (transactions contemplated hereby, including, without limitation, determining, giving and receiving notices and processes hereunder, receiving distributions of the “merger consideration to or for the benefit of the Company Stockholders’ Representative”).
(b) In , contesting and settling any and all claims for indemnification pursuant to ARTICLE VI, resolving any other disputes hereunder, performing the event duties expressly assigned to the Stockholders’ Representative dieshereunder and to engage and employ agents and representatives, becomes unable to perform his or her responsibilities hereunder or resigns from such position, retain and use the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative Expense Amount and incur such other expenses as the Stockholders’ Representative shall reasonably deem necessary or prudent in connection with the foregoing. The Stockholders’ Representative shall have the sole and exclusive right on behalf of each Company Stockholder to take any action or provide any waiver, or receive any notice with respect to any claims for all purposes indemnification under ARTICLE VI and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of this Agreement rights, power or authority, and any decision or determination made by the documents delivered pursuant hereto.
(c) All decisions Stockholders’ Representative, shall be absolutely and actions irrevocably binding on each Company Stockholder as if such Company Stockholders personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Stockholder’s individual capacity, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Any action required to be taken by the Company Stockholders hereunder or any action that the Company Stockholders, at their election, have the right to take hereunder, shall be taken only by the Stockholders’ Representative pursuant and no Company Stockholder acting on its own shall be entitled to take any such action. After Closing, Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Stockholder by the Escrow AgreementStockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Company Stockholder by the Stockholders’ Representative, as being fully binding upon such Person. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Company Stockholders. Any decision or action by the Stockholders’ Representative hereunder, including any agreement between the Stockholders’ Representative and Parent relating to the defense defense, payment or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9hereunder, shall be binding upon constitute a decision or action of 59 all of the Company IndemnitorsStockholders and shall be final, binding and no conclusive upon each such Person. No Company Indemnitors Stockholder shall have the right to objectobject to, dissentdissent from, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faithsame. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) 9.15(a), including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to terminated by any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved act of any liability imposed by Legal Requirements for gross negligence one or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess or by operation of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductLaw.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated Target Stockholders hereby following the Closingirrevocably nominate, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated constitute and appoint J▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative agent and true and lawful attorney-in-fact of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement Target Stockholders (the “Stockholders’ Representative”), with full power of substitution, to act in the name, place and stead of Target Stockholders for purposes of executing any documents and taking any actions that Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any of the transactions contemplated by this Agreement. J▇▇▇ ▇. ▇▇▇▇▇▇▇ hereby accepts his appointment as a Stockholders’ Representative.
(i) Target Stockholders hereby grant to Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of Target Stockholders (in the name of any or all of Target Stockholders or otherwise) any and all documents that Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as Stockholders’ Representative may, in his sole discretion, determine to be appropriate (including any amendment to or waiver of rights under any of this Agreement). Notwithstanding anything to the contrary contained in this Agreement:
(1) Buyer and Buyer Parent shall be entitled to deal exclusively with Stockholders’ Representative on all Target Stockholder-related matters relating to this Agreement and the transactions contemplated by this Agreement (including all matters relating to any notice to, or any Consent to be given or action to be taken by, any Target Stockholder); and
(2) each Buyer Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Target Stockholder by Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Target Stockholder by any Stockholders’ Representative, as fully binding upon such Target Stockholder.
(ii) Target Stockholders recognize and intend that the power of attorney granted in this Section 12.6:
(1) is coupled with an interest and is irrevocable;
(2) may be delegated by Stockholders’ Representative; and
(3) shall survive the death or incapacity of each Target Stockholder.
(iii) The Stockholders’ Representative shall be entitled to treat as genuine, and as the document it purports to be, any letter, facsimile, telex or other document that is believed by Stockholders’ Representative to be genuine and to have been telexed, telegraphed, faxed or cabled by a Target Stockholder or to have been signed and presented by a Target Stockholder.
(iv) In the event of the resignation, death or incapacity of a Stockholders’ Representative, then a majority of the Shares held by Target Stockholders as of the Closing (or by their personal representatives) shall appoint a successor to such position. No Stockholders’ Representative shall resign until a successor representative shall have been appointed.
(v) All expenses incurred by Stockholders’ Representative in connection with the performance of the duties of Stockholders’ Representative shall be borne and paid by Target Stockholders.
(b) In Notwithstanding anything to the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority contrary contained in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done error of judgment or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithany action taken, and any act done suffered or omitted to be done taken on behalf of Target Stockholders (or any of them) pursuant to the advice of counsel shall be conclusive evidence of such good faiththis Section 12.6(b). The Each Target Stockholder agrees to indemnify Stockholders’ Representative shall be entitled to be indemnified for, and held hold such Person harmless by the Company Indemnitors against against, any loss, liability or expense expense, including, without limitation, reasonable attorneys’ fees and expenses, incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewithwith, except that the Stockholders’ Representative shall not be relieved of any liability imposed action or decision taken or made and on its behalf by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors Sandpiper Ventures LLC shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ constituted and appointed as the representative agent ("Stockholders' Representative") for an on behalf of the Company Indemnitors Stockholders to give and receive notices and communications, to authorize delivery to Parent of the Parent Preferred Stock and cash 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 actions necessary or appropriate in the judgment of the Stockholders' Representative for the purposes accomplishment of this Agreement and the Escrow Agreement (foregoing. Such agency may be changed by the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold holders of a majority in interest of the Escrow Fund at such from time to time upon not less than ten (10) days' prior written notice to Parent and the Escrow Agent. No bond shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a required of the Stockholders’ Representative for all purposes of this Agreement ' Representative, and the documents delivered pursuant heretoStockholders' Representative and Escrow Agent shall receive no compensation for his services. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from each of the Company Stockholders.
(cb) All decisions and actions by the The Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ ' Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholders’ ' Representative shall be entitled to be indemnified and held hold him harmless by the Company Indemnitors against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ ' Representative and arising out of or in connection with the acceptance or administration of his/her his duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharehereunder.
(ec) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ ' Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company Parent and the reasonable assistance of the Company's officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreementhereunder, provided that the Stockholders' Representative shall treat confidentially and not disclose any nonpublic information from or about Company to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(gd) The A decision, consent or instruction of the Stockholders’ ' Representative shall not have by reason constitute a decision of this Agreement a fiduciary relationship all Company Stockholders for whom shares of Parent Preferred Stock otherwise issuable to them or that portion of the Aggregate Merger Cash Consideration otherwise payable to them are deposited in respect the Escrow Fund and shall be final, binding and conclusive upon each such Company Stockholders, and the Escrow Agent and Parent may rely upon any decision, act, consent or instruction of any the Stockholders' Representative as being the decision, act, consent or instruction of each and every such Company Stockholder. The Stockholders’ Representative shall not be liable Escrow Agent and Parent are hereby relieved from any liability to any Company Stockholder person for any action taken acts done by them in accordance with such decision, act, consent or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that instruction of the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ ' Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following The Stockholders shall at all times maintain a representative (the Closing“Stockholders’ Representative”) for the purposes described in this Agreement, including the defense or settlement taking of any claims for which Parent Indemnitees may be entitled actions and the giving of consents on behalf of the Major Stockholders prior to indemnification pursuant to Section 9, by the adoption of this Agreement, Closing and the Effective Time Company Indemnitors shall be deemed to have designated ▇▇▇▇Holders from and after the Closing as specified herein. The Major Stockholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes initial Stockholders’ Representative. The approval and adoption of this Agreement by the Stockholders and the Escrow Agreement (acceptance of the “Stockholders’ Representative”).
(b) In Merger Consideration by the event Effective Time Company Holders shall constitute, to the fullest extent permitted by law, the irrevocable authorization, direction and appointment of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Stockholders’ Representative dies, becomes unable to perform his (or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while then acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative successor pursuant to the terms of this Agreement or hereof) as the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact and agent of each Effective Time Company IndemnitorHolder for such purposes. This appointment and grant of power and authority by each Effective Time Company Holder is coupled with an interest and is irrevocable and shall not be terminated by any act of any Effective Time Company Holder or by operation of law, with full power in his, her whether by the death or its name and on his, her incapacity of any individual Effective Time Company Holder or its behalf by the occurrence of any other event. Another person shall be appointed as the Stockholders’ Representative if the person so designated (or any successor thereof) is unwilling or unable to act according to the terms of this Agreement and the Escrow Agreementso act. The Stockholders’ Representative hereby accepts such appointment.. Accordingly, the Stockholders’ Representative shall have full power and authority to:
(i) take any action on behalf of the Major Stockholders or the Effective Time Company Holders, as applicable, to facilitate or administer the transactions contemplated hereby, including, without limitation, amending this Agreement, and executing such other documents or instruments as the Stockholders’ Representative deems appropriate;
(ii) Parent shall (A) dispute or refrain from disputing, or approve, any claim made by an Eclipsys Indemnified Party under this Agreement that may be entitled satisfied from the Escrow Fund, (B) authorize payment of any claim to rely conclusively an Eclipsys Indemnified Party under Article VII of this Agreement, (C) negotiate and compromise any dispute that may arise under Article VII of this Agreement or arise under this Agreement generally and be satisfied from the Escrow Fund and (D) execute any settlement agreement, release or other document with respect to such dispute or remedy;
(iii) (A) dispute or refrain from disputing, or approve, the Eclipsys Final Calculations, (B) authorize payment of any Purchase Price shortfall determined under Sections 2.10 and 2.11 of this Agreement or any expenses of an Unrelated Accounting Firm contemplated by Section 2.11 of this Agreement, (C) negotiate and compromise any dispute that may arise with respect to the Eclipsys Final Calculations and (D) execute any settlement agreement, release or other document with respect to such dispute or remedy;
(iv) engage attorneys, accountants and agents and authorize payment of the amount of the expenses for such Persons from the Stockholders’ Fund;
(v) exercise all rights of, and take all actions that may be taken on behalf of the Effective Time Company Holders under the Escrow Agreement;
(vi) give such instructions and take such action or refrain from taking such action as the Stockholders’ Representative deems, in his or her discretion, necessary or appropriate to carry out the provisions of this Section 6.9; and
(vii) to the extent not prohibited or otherwise provided by this Agreement, distribute funds from the Stockholders’ Fund for the ▇▇▇▇▇▇▇ Software Development Bonus, the ▇▇▇▇▇▇▇ Software Development Bonus and the Stockholders’ Fund and the True-Up Reserve Fund, in their Pro Rata Portion, to the Effective Time Company Holders.
(b) To the fullest extent permitted by applicable law, each of the Effective Time Company Holders hereby (i) irrevocably appoints the Stockholders’ Representative as such Effective Time Company Holder’s agent for service of any and all legal process, summons, notices and documents which may be served in any action or proceeding under or pursuant to this Agreement and (ii) waives any requirement of personal notice or any claim that service on the instructions Stockholders’ Representative is invalid or insufficient to constitute valid personal service on such Effective Time Company Holder.
(c) Each of the Effective Time Company Holders acknowledges that actions taken, consents given and decisions given or representations made by the Stockholders’ Representative as to any on behalf of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Effective Time Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 Holders pursuant hereto shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company Major Stockholders and the reasonable assistance of Effective Time Company Holders, as applicable, including all actions and consents under the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Escrow Agreement.
(gd) The Stockholders’ Representative shall not have may resign at any time, and may be removed for any reason or no reason by reason the vote or written consent of, as applicable, (i) if prior to the Effective Time, the Major Stockholders holding a majority of the then outstanding fully diluted Shares held by the Major Stockholders, or (ii) from and after the Effective Time, the Effective Time Company Holders holding a majority of the outstanding fully diluted Shares at the Effective Time.
(e) The approval and adoption of this Agreement a fiduciary relationship in respect by the Stockholders and the acceptance of any the Merger Consideration by the Effective Time Company Stockholder. The Holders shall constitute, to the fullest extent permitted by law, the irrevocable agreement of each of them (i) that the Stockholders’ Representative shall not be liable to any Company Stockholder of them for Damages with respect to any action taken or omitted any omission by it hereunder or under any other document contemplated hereby, or in connection therewiththe Stockholders’ Representative pursuant to this Section 6.9, except to the extent such Damages are caused by the Stockholders’ Representative’s bad faith, fraud or criminal misconduct and (ii) to indemnify the Stockholders’ Representative against any Damages that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence may suffer or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising incur in connection with any act action taken or any omission as by the Stockholders’ Representative, except for any liability imposed to the extent such Damages are caused by Legal Requirements for gross negligence the Stockholders’ Representative’s bad faith, fraud or willful criminal misconduct.
(f) To the fullest extent permitted by applicable law, each of the Effective Time Company Holders hereby (i) irrevocably appoints the Stockholders’ Representative as such Effective Time Company Holder’s agent for service of any and all legal process, summons, notices and documents which may be served in any action or proceeding under or pursuant to this Agreement, (ii) waives any requirement of personal notice or any claim that service on the Stockholders’ Representative is invalid or insufficient to constitute valid personal service on such Effective Time Company Holder and (iii) ratifies and confirms, and agrees to be bound by, all actions taken by the Stockholders’ Representative on its behalf pursuant to the foregoing authorization.
Appears in 1 contract
Sources: Merger Agreement (Eclipsys Corp)
Stockholders’ Representative. (a) In order Effective upon and by virtue of the vote of the Stockholders approving and adopting this Agreement and the Merger pursuant to efficiently administer certain matters contemplated hereby following the ClosingWritten Consent, including the defense or settlement and without any further act of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by of the adoption of this AgreementStockholders, the Company Indemnitors Stockholders’ Representative shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby appointed as the representative of the Company Indemnitors Holders and as the attorney-in-fact and agent for the and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from and will take such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed actions to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions taken by the Stockholders’ Representative pursuant under this Agreement and the Escrow Agreement and such other actions on behalf of such Holders as it may deem necessary or appropriate in connection with or to consummate the transactions contemplated hereby or thereby, including (i) taking all actions and making all filings on behalf of such Holders with any Governmental Authority or other Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative (ii) agreeing to, negotiating, entering into settlements and Parent relating to the defense or settlement compromises of, complying with orders of courts with respect to, and otherwise administering and handling any claims for which Parent under this Agreement or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence on behalf of such good faith. The Stockholders’ Representative shall be entitled to be indemnified Holders, including indemnifications claims, (iii) negotiating and held harmless by the Company Indemnitors against executing any loss, liability waivers or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms amendments of this Agreement or the Escrow Agreement (including provided that any amendment that shall adversely and disproportionately affect the hiring rights or obligations of legal counsel any Holder shall require the prior written consent of such Holder) and (iv) taking all other actions that are either necessary or appropriate in the incurring judgment of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted for the true and lawful attorney-in-fact accomplishment of each Company Indemnitor, with full power in his, her the foregoing or its name and on his, her or its behalf to act according to contemplated by the terms of this Agreement and or the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent . The Stockholders’ Representative shall be entitled use commercially reasonable efforts based on contact information available to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of keep the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions Holders reasonably informed with respect to actions of the Stockholders’ Representative shall be conclusive and binding upon all of pursuant to the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by authority granted the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement which actions have a material impact on the part of amounts payable to the Stockholders’ Representative;
(iv) Holders. Each Holder shall promptly provide written notice to the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved change of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution address of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductHolder.
Appears in 1 contract
Sources: Merger Agreement (Symbion Inc/Tn)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇Each Stockholder constitutes and appoints V▇▇▇▇ ▇▇▇▇▇ ▇▇, with full power of substitution, as the its true and lawful agent, attorney-in-fact and representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power and authority in hishis or her name, her or its name place and s▇▇▇▇ to take any and all actions on hisbehalf of such Stockholder, her or its behalf including without limitation to amend this Agreement, to act according on his or her behalf and to the terms of this Agreement execute and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall deliver all notices and other instruments which may be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative provided under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement and otherwise act as the Stockholders’ Representative as required under this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide . V▇▇▇▇ ▇▇▇▇▇▇ hereby accepts such appointment as the Stockholders’ Representative, at his expense, with reasonable access . Each Stockholder agrees to information about be bound by any and all actions taken by the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have Representative. Any action by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall be deemed to be authorized and approved by the Stockholders and neither Buckeye, the Acquisition Sub, the Surviving Corporation, the Company nor any other person shall be required to inquire as to whether any such action has been approved by the Stockholders or to deal with any of the Stockholders (except as expressly provided herein). The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each Stockholder, Buckeye, the Acquisition Sub, the Surviving Corporation and the Company will be relying upon the power of such Stockholders’ Representative to act as contemplated by this Section 15.18, and it shall survive and not be relieved affected by the subsequent incapacity of any liability imposed by Legal Requirements for gross negligence Stockholder or willful misconductthe Merger or any other transactions contemplated hereby or the transfer of all or any portion of any Stockholder’s Buckeye Stock and shall extend to each Stockholder’s heirs, successors, assigns and personal representatives. The In the case of the resignation, death or inability of the Stockholders’ Representative to serve as such, a successor Stockholders’ Representative shall not be liable designated by the Stockholders. Any such designation shall be evidenced by a writing signed by the Stockholders and shall take effect when an executed copy thereof has been delivered to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in errorBuckeye, the sole recourse of any Acquisition Sub and the Company Stockholder on or prior to which payment was duethe Merger, but not madeor to Buckeye and the Surviving Corporation after the Merger, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take together with an acceptance by such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductsuccessor.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By executing the ClosingStockholder Support Agreements, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇each Stockholder irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the representative true and lawful agent and attorney-in-fact (hereinafter referred to as the "STOCKHOLDERS' REPRESENTATIVE") of each Stockholder, with full powers of substitution, to act in the Company Indemnitors for name, place and stead of each Stockholder with respect to the purposes Merger in accordance with the provisions of this Agreement and the Escrow Agreement, and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Stockholders' Representative may deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement (or the “Stockholders’ Representative”).
(b) In Escrow Agreement, to give and receive notices and communications, to authorize delivery to Parent of the event Escrow Shares or other property from the Escrow Account 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 the Stockholders’ ' Representative diesfor the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to time upon not less than thirty days prior written notice to Parent; PROVIDED, becomes unable HOWEVER, that the Stockholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Account agree to perform his or her responsibilities hereunder or resigns from such position, removal and to the Company Indemnitors who hold identity of the substituted stockholders' representative. Any vacancy in the position of Stockholders' Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund at Account.. The Stockholders agree that any such time action, if material to the rights and obligations of the Stockholders in the reasonable judgment of the Stockholders' Representative, shall be authorized taken in the same manner with respect to and shall select another representative to fill such vacancy and such substituted representative all Stockholders, unless otherwise agreed by each Stockholders. The appointment of the Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Stockholders' Representative as the act of Stockholders in all matters referred to be a Stockholders’ Representative for all purposes of in this Agreement and the documents delivered pursuant heretoAgreement.
(cb) All decisions and actions by the The Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ ' Representative while acting in good faithfaith and in the exercise of reasonable judgment.
(c) The Stockholders' Representative shall have reasonable access to information about the Company and Parent and the reasonable assistance of the Company's and Parent's officers and employees for purposes of performing his duties and exercising his rights hereunder, PROVIDED, that (i) the Stockholders' Representative shall treat confidentially and not disclose any act done nonpublic information from or omitted about the Company or Parent to anyone (except on a need to know basis to individuals who agree in writing to treat such information confidentially) and (ii) such information shall not be provided by Parent or the Company to the extent that (A) such information is subject to a confidentiality or nondisclosure agreement to which Parent or the Company is a party, (B) disclosure of such information would jeopardize the attorney/client or work product privileges attaching to such information or (C) such information would not otherwise be required to be done disclosed by Parent or the Company pursuant to applicable discovery rules.
(d) The Stockholders shall, severally and not jointly, on a pro rata basis based on their proportionate ownership interests in the advice of counsel shall be conclusive evidence of such good faith. The Escrow Account immediately following the Closing, indemnify, defend and hold the Stockholders’ ' Representative shall be entitled to be indemnified harmless from and held harmless by the Company Indemnitors against any loss, damage, tax, liability or and expense that may be incurred without bad faith on the part of by the Stockholders’ ' Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred ' Representative's duties, except as caused by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for 's gross negligence or willful misconduct, including the legal costs and expenses of defending such Stockholders' Representative against any claim or liability in connection with the performance of the Stockholders' Representative's duties. The Prior to final distribution of Escrowed Shares in termination of the Escrow as provided in the Escrow Agreement, the Stockholders’ ' Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was dueentitled, but not madelimited to, shall be to recover such indemnification from the Escrow Fund (with the Parent Shares included therein, if any, being valued at the Adjusted Stock Price for this purpose) prior to any distribution thereof to the Stockholders, but after any distributions therefrom to Parent; PROVIDED, HOWEVER, that the Escrow Agent shall disburse such Escrowed Shares, if any, FIRST, from the Accounts (as defined in the Escrow Agreement) of all Stockholders other Company Stockholders any payment in excess than the holder of Preferred Shares on a PRO RATA basis and SECOND, to the extent additional Escrowed Shares are necessary to satisfy such claims, from the Account of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductholder of Preferred Shares.
Appears in 1 contract
Sources: Merger Agreement (Ticketmaster Online Citysearch Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The Selling Stockholders hereby following the Closingirrevocably appoint YEONGYI (Asia) Co., including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Ltd. as the representative of the Company Indemnitors for the purposes of this Agreement their agent and the Escrow Agreement attorney-in-fact (the “Stockholders’ Representative”) for all purposes under this Agreement, including for purposes of Article 9, and consent to the taking by the YEONGYI (Asia) Co., Ltd. of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders’ Representative, the EYON Stockholders as a group or the Selling Stockholders as a group (where such group action is required or permitted by this Agreement) under this Agreement (including executing and delivering the Related Agreements on behalf of the Selling Stockholders, delivering any consents, waivers or certifications and making any necessary filings).; and the taking of all actions necessary or desirable in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Selling Stockholders hereby acknowledge and agree that the Stockholders’ Representative has the authority to execute and deliver this Agreement on their behalf. The Stockholders’ Representative hereby accepts its appointment as the agent and attorney-in-fact for all purposes under this Agreement, including for purposes of Article 9, of the Selling Stockholders. The Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, including for purposes of Article 9, and a decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all the Selling Stockholders, and shall be final, binding and conclusive upon each of the Selling Stockholders, and the Parent and the Company may rely upon any decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and all of the Selling Stockholders. The Parent and the Company are relieved from any liability to any Selling Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders’ Representative
(b) In The Stockholders’ Representative shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the event validity, accuracy or content thereof nor shall the Stockholders’ Representative dies, becomes unable to perform his be responsible for the validity or her responsibilities hereunder or resigns from such positionsufficiency of this Agreement. In all questions arising under this Agreement, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative may rely on the advice of counsel, and for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions anything done, omitted or suffered in good faith by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any based on such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representativeadvice, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Shareanyone.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Stock Purchase Agreement (Optical Communication Products Inc)
Stockholders’ Representative. (a) In order to administer efficiently administer certain matters (i) the determination of the Adjustment Amount (as defined in Section 12.4 hereof), (ii) waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby following the Closinghereby, including (iii) the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders may be entitled required to indemnification indemnify the Buyer or the Company pursuant to Section 910 hereof, by and (iv) any rights or obligations of the adoption of Stockholders pursuant to this Agreement or the Escrow Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Stockholders hereby designate Hisanori Aoyama as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions relating to the determination of the Adjustment Amount, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 10 hereof, (iii) to give and receive all notices required to be given under this Agreement, and (iv) to take any and all additional action as is contemplated, permitted or required by the terms of this Agreement or the Escrow Agreement to be taken by or on behalf of the Stockholders.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders (or their respective successors, heirs or executors) holding, prior to the Company Indemnitors who hold Closing, a majority in interest of the Escrow Fund at such time Shares as set forth on Schedule I shall be authorized to and shall promptly select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement' Representative, including including, without limitation, any agreement between the Stockholders’ ' Representative and Parent the Buyer relating to the determination of the Adjustment Amount or the defense or settlement of any claims for which Parent or the Surviving Company Stockholders may be entitled required to indemnification indemnify the Buyer and/or the Company pursuant to Section 910 hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 Buyer and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled able to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the determination of the Adjustment Amount, the settlement of any claims for indemnification by the Buyer or made the Company pursuant to Section 10 hereof, the taking of any action pursuant to the Escrow Agreement or as to any other actions authorized to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party hereunder shall have any cause of action against the Buyer or the Parent for any action taken by the Buyer or the Parent in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.6 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and;
(viiv) money damages for any breach of the provisions of this Section 1.6 would be inadequate;
(v) the provisions of this Section 10.1 1.6 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholder's or Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(vi) the Stockholders' Representative shall have the right, power and authority to execute and deliver on behalf of each Stockholder the Escrow Agreement and any other agreements, certificates and instruments contemplated by this Agreement or necessary or appropriate to facilitate the Closing.
(f) From All fees and after the Closing, Parent shall cause the Surviving Company to provide expenses incurred by the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ ' Representative shall not have be paid by reason the Stockholders in proportion to their ownership of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions Shares as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.set forth on Schedule I.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement By voting in favor of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors approval of the principal terms of the Merger, execution of a Note Holder Joinder Agreement, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Indemnifying Party shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ approved the designation of, and hereby designates, Shareholder Representative Services LLC as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement Stockholders’ Representative (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faithterms set forth herein. The Stockholders’ Representative shall act as the representative of the Indemnifying Parties, and shall be entitled authorized to act on behalf of the Indemnifying Parties and to take any and all actions required or permitted to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or with respect to any claims (including the Escrow Agreementsettlement thereof) made by an Indemnified Party for indemnification pursuant to this Article IX (including, except without limitation, the exercise of the power to (i) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for fraud or willful breach indemnification and (ii) take all actions necessary in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing). In all matters relating to this Agreement Article IX, the Stockholders’ Representative shall be the only party entitled to assert the rights of the Indemnifying Parties, and the Stockholders’ Representative shall perform all of the obligations of the Indemnifying Parties hereunder. The Indemnified Parties shall be entitled to rely on the part all statements, representations and decisions of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve . Each Indemnifying Party hereby agrees to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide receive correspondence from the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreementincluding in electronic form.
(gb) The Indemnifying Parties shall be bound by all actions taken by the Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of his, her or its capacity thereof, except for any Company Stockholderaction that conflicts with the limitations set forth in subsection (d) below. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken at all times act in his or omitted by it hereunder or under any other document contemplated hereby, or her capacity as Stockholders’ Representative in connection therewith, except a manner that the Stockholders’ Representative believes to be in the best interest of the Indemnifying Parties. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall not be relieved liable to any person for any error of judgment, or any liability imposed by Legal Requirements for action taken, suffered or omitted to be taken under this Agreement, except in the case of its gross negligence or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ 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.
(c) Each Indemnifying Party shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such Indemnifying Party’s ratable share of any and all liabilities, losses, damages, claims, suits, actions, causes of action, costs or expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be liable taken by the Stockholders’ Representative under this Agreement, in each case as such Representative Loss is incurred; 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 Stockholders’ Representative, the Stockholders’ Representative will reimburse the Indemnifying Parties the amount of such indemnified Representative Loss attributable to any Company Stockholder for any apportionment such gross negligence or distribution of payments made willful misconduct. If not paid directly to the Stockholders’ Representative by it in good faiththe Indemnifying Parties, and if any such apportionment or distribution is subsequently determined to have been made in error, Representative Losses may be recovered by the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover Stockholders’ Representative from the other Company Stockholders funds in the Expense Fund; provided that while this Article IX allows the Stockholders’ Representative to be paid from the Expense Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses, nor does it prevent the Stockholders’ Representative from seeking any payment in excess of the amount remedies available to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that it at law or otherwise.
(d) If the Stockholders’ Representative shall not die, be obligated removed, become disabled, resign or otherwise be unable to take any actions and fulfill its responsibilities hereunder, the Indemnifying Parties shall be (by consent of those persons entitled to take at least a majority of the Maximum Company Debt Payment), within 10 days after such actions death, removal, disability, resignation or inability, appoint a successor to the Stockholders’ Representative and immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative deems appropriate in its sole discretionhereunder. Each Company Stockholder further agrees If for any reason there is no Stockholders’ Representative at any time, all references herein to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as shall be deemed to refer to the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductIndemnifying Parties.
Appears in 1 contract
Sources: Merger Agreement (DemandTec, Inc.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9The Principal Stockholders, by virtue of their approval of the adoption of this Agreement, the Company Indemnitors shall will be deemed to have designated ▇▇▇▇irrevocably constituted and appointed, effective as of the Effective Time, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform together with his or her responsibilities hereunder or resigns from such positionpermitted successors, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement"Stockholder Representative"), including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful agent and attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to enter into any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have agreement in connection with the transactions contemplated by this Agreement and any transactions contemplated by the Escrow Agreement; and
, to exercise all or any of the powers, authority and discretion conferred on him under any such agreement, to waive any terms and conditions of any such agreement (vi) other than the provisions Merger Consideration), to give and receive notices on their behalf and 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 this Section 10.1 shall any claim, action or proceeding for which the Parent or the Merger Sub may be binding upon entitled to indemnification and the executors, heirs, legal representatives, successors and assigns of each Company IndemnitorStockholder Representative agrees to act as, and any references in this Agreement to undertake the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason responsibilities of, such agent and attorney-in-fact. This power of this Agreement a fiduciary relationship in respect of any Company Stockholderattorney is coupled with an interest and is irrevocable. The Stockholders’ Stockholder Representative shall not be liable to any Company Stockholder for any action taken or omitted not taken by it hereunder or under any other document contemplated hereby, or him in connection therewithwith his obligations under this Agreement (i) with the consent of Principal Stockholders who, except that as of the Stockholders’ Representative shall not be relieved date of any liability imposed this Agreement, owned a majority in number of the outstanding shares of Company Common Stock owned by Legal Requirements for the Principal Stockholders or (ii) in the absence of his own gross negligence or willful wilful misconduct. The Stockholders’ If the Stockholder Representative shall not be liable unable or unwilling to any serve in such capacity, his successor shall be named by Principal Stockholders holding a majority of the shares of Company Common Stock owned by the Principal Stockholders at the Effective Time who shall serve and exercise the powers of Stockholder for any apportionment or distribution Representative hereunder. For purposes of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in errorthis Agreement, the sole recourse of any Company Stockholder to which payment was due, but not made, "Principal Stockholders" shall be those natural persons identified in the Escrow Agreement as being parties to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductEscrow Agreement.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the defense Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to appropriate in connection with the matters set forth in Section 2.6(i), Section 2.9, and Section 9, the Participating Securityholders, by the adoption of this Agreement, execution of the Company Indemnitors Joinder, execution of a Warrant Cancellation Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the Letters of Transmittal, shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ AEP Holdings LLC as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement Participating Securityholders (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her its responsibilities hereunder or resigns from such positionposition (which the Parties agree it may do any time and for any reason, including if the Stockholders’ Representative Reserve is depleted), the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time Required Stockholders shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, execution of the Company Indemnitors Joinder, execution of a Warrant Cancellation Agreement, acceptance of consideration under this Agreement and/or the delivery of the Letter of Transmittal, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby shall be appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorParticipating Securityholder, 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 and in general to do all things and to perform all acts including (A) executing and delivering any agreements, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, (B) authorizing the delivery of cash or LEC Stock from the Escrow Fund, (C) agreeing to, negotiating, giving and receiving notices in relation to, entering into settlements and compromises of, and complying with arbitration awards and orders of courts with respect to this Agreement, the Escrow Agreement and the Payment Agent Agreement, and (D) taking all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The By execution of this Agreement, the Stockholders’ Representative hereby accepts such appointment.;
(ii) Parent the Stockholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Participating Securityholders (in the name of any or all of the Participating Securityholders or otherwise) any and all documents that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Stockholders’ Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Securityholder individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the transactions contemplated hereby and thereby, and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing; provided, however, that the Stockholders’ Representative shall cause all such Persons to be bound by reasonable and customary confidentiality provisions and shall cause LEC and its Affiliates to be named third-party beneficiaries of such provisions with the right to enforce such provisions;
(iii) LEC, the Surviving Corporation, the Payment Agent, the Escrow Agent and their respective agents will be entitled to rely conclusively on any Allocation Schedule delivered by the Stockholders’ Representative pursuant to Section 2.6(i), or the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e)2.8, and no party shall have any cause of action against Parent any of the foregoing Persons for any action taken by Parent or not taken in reliance upon any such instructions or decisionsdecisions and they hereby waive any such causes of action;
(iiiiv) all actions, decisions and instructions of the Stockholders’ Representative, including any payment amounts set forth on any Allocation Schedule prepared by Stockholders’ Representative pursuant to Section 2.6(i), shall be conclusive and binding upon all each of the Company IndemnitorsParticipating Securityholders, and no Company Indemnitor Participating Securityholders shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for common law fraud or for willful breach of this Agreement misconduct on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) 2.8 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Participating Securityholder may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 2.8 shall be binding upon the executors, heirs, legal representatives, representatives successors and assigns of each Company IndemnitorParticipating Securityholders, and any references in this Agreement to a Participating Securityholder or the Company Indemnitors Participating Securityholders shall mean and include the successors to the Company Indemnitor’s Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(fd) From and after At the Closing, Parent LEC shall cause the Surviving Company to provide be deposited, in an account designated by the Stockholders’ Representative, One Hundred Fifty Thousand Dollars ($150,000) (the “Stockholders’ Representative Reserve”). The Stockholders’ Representative Reserve (and earnings thereon) may be applied as the Stockholders’ Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities or expenses that the Stockholders’ Representative incurred in connection with the transactions contemplated by this Agreement and its obligations under the Escrow Agreement, including all documented third party costs of the Stockholders’ Representative and services performed by managers of the Stockholders’ Representative at his expenseprevailing billing rates, with reasonable access to information about plus overhead of ten percent (10%) (the Surviving Company “Stockholders’ Representative Expenses”). The Participating Securityholders shall not receive interest or other earnings on the Stockholders’ Representative Reserve and the reasonable assistance of Participating Securityholders irrevocably transfer and assign to the officers and employees of Stockholders’ Representative any ownership right that they may have in any interest that may accrue on funds held in the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) Stockholders’ Representative Reserve. The Participating Securityholders acknowledge that the Stockholders’ Representative is not providing any investment supervision, recommendations or advice. The Stockholders’ Representative shall not have by reason no responsibility or liability for any loss of this Agreement principal of the Stockholders’ Representative Reserve other than as a fiduciary relationship in respect result of any Company Stockholderits gross negligence or willful misconduct. The Participating Securityholders agree that the Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholders’ Representative Reserve. The balance of the Stockholders’ Representative Reserve held pursuant to this Section 2.8(d), if any, shall, at the sole discretion of the Stockholders’ Representative and at such time to be determined in the sole discretion of the Stockholders’ Representative, be remitted to LEC (or its designee) for prompt distribution (and, in any case, within fifteen (15) days following receipt of the funds) to the Participating Securityholders by the Payment Agent pursuant to an Allocation Schedule prepared by the Stockholders’ Representative in accordance with Section 2.6(i). For Tax purposes, the Stockholders’ Representative Reserve shall be treated as having been received and voluntarily set aside by the Participating Stockholders at the time of the Closing.
(e) As between the Participating Securityholders and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken act done or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel or other third party consultants shall not be relieved conclusive evidence of any liability imposed by Legal Requirements for gross negligence or willful misconductsuch good faith. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faithand its members, managers, successors and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and assigns shall be entitled to take such actions as be indemnified and held harmless and reimbursed by the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and Participating Securityholders against any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder or in connection with any act Stockholders’ Representative Expenses, in each case as such loss, liability or omission as expense is incurred or suffered; provided, that in the event it is finally adjudicated that such loss, liability or expense or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Stockholders’ Representative, except for any the Stockholders’ Representative will reimburse the Participating Securityholders the amount of such indemnified loss, liability imposed by Legal Requirements for or expense attributable to such gross negligence or willful misconduct. Any such losses, liabilities or expenses of the Stockholders’ Representative shall be recovered by the Stockholders’ Representative in the following order: (i) first, from the Stockholders’ Representative Reserve, to the extent any funds remain in such fund; or (ii) second, from the Escrow Fund, but solely to the extent of any amounts released to the Participating Securityholders thereunder. No provision of this Agreement, the Escrow Agreement or the Payment Agent Agreement shall require the Stockholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or the Payment Agent Agreement.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated D▇. ▇▇▇▇ P▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , a director of the Company immediately prior to the Effective Time, is hereby appointed as the representative of the Company Indemnitors for Stockholders, from and after the purposes of this Agreement Effective Time, in connection with each Transaction Document and the Escrow Agreement Transactions (the “Stockholders’ Representative”).
(b) In the event the . Stockholders’ Representative dies, becomes unable shall have full power and authority to perform his or her responsibilities hereunder or resigns from such position, represent all of the Company Indemnitors who hold a majority in interest of Stockholders and their successors, assigns, heirs and representatives with respect to all matters arising under the Escrow Fund at such time shall be authorized to Transaction Documents and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a all actions taken by Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, thereunder shall be final, conclusive and binding upon all of the Company IndemnitorsStockholders and their successors, assigns, heirs and representatives as if expressly confirmed and ratified in writing by each of them, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Stockholders’ Representative shall take any such decision and all actions which he believes are necessary or actionappropriate under the Transaction Documents for and on behalf of the Company Stockholders, as fully as if the Company Stockholders were acting on their own behalf, including executing the Escrow Agreement as Stockholder Representative, giving and receiving any notice or instruction permitted or required under any of the Transaction Documents by Stockholders’ Representative or any Company Stockholder (including, without limitation, Article VII hereof), interpreting all of the terms and provisions of the Transaction Documents, authorizing payments to be made with respect thereto, dealing with Parent and the Escrow Agent under the Transaction Documents with respect to all matters arising under the Transaction Documents, taking any and all other actions specified in or contemplated by the Transaction Documents and engaging counsel, accountants or other advisors in connection with the foregoing matters. All costs and expenses incurred by Stockholders’ Representative in fulfillment of his duties hereunder (including the fees and expenses of counsel) shall be paid from the Stockholders’ Representative Expense Fund. Without limiting the generality of the foregoing, Stockholders’ Representative shall have full power and authority to interpret all the terms and provisions of the Transaction Documents and to consent to any amendment thereof on behalf of all of the Company Stockholders and their successors, assigns, heirs and representatives.
(db) As between Notwithstanding the foregoing, Stockholders’ Representative shall (i) give each Company Indemnitors Stockholder copies of any demands, notices or other communications received by him and notice or any proposed or actual approvals, waivers, amendments, requests, consents and instructions, in all cases insofar as relevant to such Company Stockholder, and (ii) not take any action for or on behalf of any Company Stockholder that would, directly or indirectly, in any way (A) reduce the portion of the Merger Consideration payable to such Company Stockholder, (B) terminate any Transaction Document, (C) adversely affect the rights, obligations or financial position of such Company Stockholder under any Transaction Document or the reputation of such Company Stockholder, (D) disproportionately and adversely affect such Company Stockholder or affect such Company Stockholder differently and adversely from the majority of other Company Stockholders or (E) take any regulatory decisions which would affect such Company Stockholder, other than in the ordinary course of business of the Surviving Corporation.
(c) Stockholders’ Representative shall have no liability to any Company Stockholder, the Surviving Corporation, Parent or Purchaser for any action taken or omitted to be taken hereunder, unless such liability is determined by a judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Stockholders’ Representative. Stockholders’ Representative may, in all questions arising under any Transaction Document, conclusively rely on the advice of counsel, and Stockholders’ Representative shall not be liable to the Company Stockholders for any act done anything done, omitted or omitted hereunder or under the Escrow Agreement as suffered in good faith by Stockholders’ Representative while acting in good faithbased on such advice.
(d) From and after the Effective Time, Parent shall protect, defend, indemnify and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The hold harmless Stockholders’ Representative shall be entitled to be indemnified (acting in such capacity after the Effective Time) from and held harmless by the Company Indemnitors against any loss, liability and all Damages directly or expense incurred without bad faith on the part of the Stockholders’ Representative and indirectly arising out of or in connection with the acceptance performance by Stockholders’ Representative of his duties and obligations pursuant to each Transaction Document unless such liability is determined by a judgment of a court of competent jurisdiction to have resulted from the gross negligence or administration willful misconduct of his/her duties hereunder or under Stockholders’ Representative (acting in such capacity after the Escrow AgreementEffective Time). The Stockholders’ Representative shall be entitled to recover indemnification by Parent notwithstanding that any out-of-pocket costs and expenses reasonably incurred action taken or not taken by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement may conflict with, or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreementmay be opposed to, the Company Indemnitors shall be deemed to have agreedbest interests of Parent or its stockholders, in addition to the foregoing, that:
(i) the it being understood that Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact acting on behalf of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (Stockholders in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance not on behalf of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this AgreementParent.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Radio One Inc)
Stockholders’ Representative. The Stockholders hereby appoint Gabriel Norona (a) In order to efficiently administer certain matters contemplated hereby following such person and any successor or successors being the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated "▇▇▇▇▇▇▇▇▇▇▇▇' REPRESENTATIVE"), and Gabriel Norona shall act as, the representative of the Stockholders, w▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as the representative ▇rity to act on behalf of the Company Indemnitors for the purposes of this Agreement Stockholders and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his take any and all actions required or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed permitted to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions taken by the Stockholders’ ' Representative under this Agreement, with respect to any claims (including the settlement thereof) made by Bentley or the Stockholders for indemnification pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section Article 9, . The Stockholders shall be binding upon bound by all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ ' Representative in his capacity thereof. The Stockholders' Representative shall promptly, and in any event within five Business Days, provide written notice to the Stockholders of any action taken on their behalf by the Stockholders' Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition authority delegated to the foregoing, that:
(i) the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf to act according to the terms of under this Agreement and the Escrow AgreementSection 9.4. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon at all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (times act in his capacity as Stockholders' Representative in a manner that the Stockholders’ Representative) ' Representative believes to be in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions best interest of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ ' Representative shall not be liable to any Company Stockholder person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of his gross negligence, bad faith or willful misconduct. The Stockholders' Representative may consult with legal counsel, independent public accountants and other experts selected by him and shall not be liable for any action taken or omitted to be taken in good faith by it hereunder him in accordance with the advice of such counsel, accountants or under experts. The Stockholders' Representative shall not have any other document contemplated herebyduty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement. As to any matters not expressly provided for in connection therewiththis Agreement, except that the Stockholders’ ' Representative shall not be relieved required to exercise any discretion or take any action. Notwithstanding anything to the contrary herein, (a) the Stockholders' Representative is not authorized to, and shall not, accept on behalf of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholder any Merger Consideration to which such Stockholder is entitled under this Agreement and (b) the Stockholders’ ' Representative shall not not, in any manner, exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Bentley now or hereafter owned of record or beneficially by any Stockholder unless the Stockholders' Representative is expressly authorized to do so in a separate writing signed by such Stockholder. In all matters relating to this Article 9, the Stockholders' Representative shall be liable the only party entitled to any Company Stockholder for any apportionment or distribution assert the rights of payments made by it in good faiththe Stockholders, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, Stockholders' Representative shall be to recover from the other Company Stockholders any payment in excess perform all of the amount to which they are determined to have been entitledobligations of the Stockholders hereunder. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and Bentley shall be entitled to take such actions as rely on all statements, representations and decisions of the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ ' Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to administer efficiently administer certain matters contemplated hereby following the Closing, including registration of the Registrable Shares and the defense or and/or settlement of any claims ABIOMED Claims for which Parent Indemnitees the Holders may be entitled required to indemnification indemnify the ABIOMED Group pursuant to Section 99 hereof, by the adoption of Holders hereby designate the Stockholders’ Representative as their representative and agent under this Agreement, and the Company Indemnitors shall Stockholders’ Representative hereby accepts such appointment.
(b) The Holders hereby authorize and appoint the Stockholders’ Representative to be deemed their exclusive representative and attorney in fact with respect to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes all matters arising out of this Agreement and the Escrow Agreement (Holders shall not make any independent agreement or arrangement with ABIOMED with respect to any such matter. In furtherance of the “foregoing, the Stockholders’ Representative”)Representative shall be authorized, on behalf of the Holder, to (i) take any action permitted or required to be taken by any Holder pursuant to this Agreement; (ii) take all action necessary in connection with the defense and/or settlement of any ABIOMED Claims for which the Holders may be required to indemnify members of the ABIOMED Group pursuant to Section 9 hereof, (iii) give and receive all notices required to be given under this Agreement, and (iv) take any and all additional action as is contemplated to be taken by or on behalf of the Holders by the terms of this Agreement.
(bc) In the event that the Stockholders’ Representative dies, becomes unable to perform his or her its responsibilities hereunder or resigns or is removed from such position, position (in accordance with the Company Indemnitors who hold a majority in interest provisions of Section 2.8(c) of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be Purchase Agreement), a successor Stockholders’ Representative for all purposes shall be appointed pursuant to the terms of this Agreement and Section 2.8(c) of the documents delivered pursuant heretoPurchase Agreement.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to Representative, including actions under this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims ABIOMED Claims for which Parent or the Surviving Company Holders may be entitled required to indemnification indemnify members of the ABIOMED Group pursuant to Section 99 hereof, shall be binding upon all of the Company IndemnitorsHolders, and no Company Indemnitors Holder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Holders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent ABIOMED shall be entitled able to rely conclusively on the instructions and decisions given of the Holders’ Representative relating to the Shelf Registration or made any other registration of Registrable Shares or to the settlement of any ABIOMED Claims for indemnification by members of the ABIOMED Group pursuant to Section 9 hereof or any other actions permitted or required to be taken by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party Person shall have any cause of action against Parent any member of the ABIOMED Group for any action taken by Parent any member of the ABIOMED Group in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Holders and no Company Indemnitor Holder shall have any cause of action against the Stockholders’ Representative for any action taken or not taken, decision made or instruction given by the Stockholders’ Representative under this Agreement arising out of or in connection with the Escrow Agreementacceptance or administration of his or its duties hereunder, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 13 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Holder may have in connection with the transactions contemplated by this Agreement; and
(viiv) the provisions of this Section 10.1 13 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company IndemnitorHolder, and any references in this Agreement to a Holder or the Company Indemnitors Holders shall mean and include the successors to the Company Indemnitor’s Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after Each Holder consents to the Closing, Parent shall cause the Surviving Company to provide appointment of the Stockholders’ Representative, at his expense, with reasonable access Representative pursuant to information about the Surviving Company and the reasonable assistance Section 2.8 of the officers Purchase Agreement and employees agrees to be bound by the provisions of Section 2.8 of the Surviving Company for purposes Purchase Agreement (the provisions of performing his duties and exercising his rights under this Agreementwhich are hereby incorporated by reference mutatis mutandis).
(g) The Stockholders’ Representative ABIOMED shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder no liability for any action taken fees or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess expenses of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductunder this Agreement.
Appears in 1 contract
Sources: Registration Rights and Stock Restriction Agreement (Abiomed Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters the transactions contemplated hereby following the Closinghereby, including (i) the payment of the Cash Payment, (ii) the waiver of any condition to the obligations of the Company Stockholders to consummate the transactions contemplated hereby, and (iii) the defense or and/or settlement of any claims for which Parent Indemnitees the Company Stockholders may be entitled required to indemnification indemnify the Buyer and/or the Company pursuant to Section 9the Escrow Agreement, by the adoption Deed of this AgreementTax and Article VII below, the Company Indemnitors shall be deemed to have designated Stockholders hereby designate ▇.▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”").
(b) The Company Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions relating to the determination of the Acquisition Amounts and to accept the Cash Payment and any payments relating to the Acquisition Amounts, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer pursuant to Article VII below or the Deed of Tax, (iii) to give and receive all notices required to be given under this Agreement, the Deed of Tax or the Escrow Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders by the terms of this Agreement, the Deed of Tax and the Escrow Agreement.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold Stockholders holding, prior to Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares as set forth on Schedule I attached hereto shall select another representative to ---------- fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement' Representative, including without limitation any agreement between the Stockholders’ ' Representative and Parent the Buyer relating to the determination of the Acquisition Amounts, the defense or settlement of any claims for which Parent the Company Stockholders may be required to indemnify the Buyer pursuant to Article VII below or the Surviving Company may be entitled to indemnification pursuant to Section 9Deed of Tax, shall be binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption his execution of this Agreement, the each Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholder agrees that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the determination of the Acquisition Amounts, the settlement of any claims for indemnification by the Buyer and/or the Company pursuant to Article VII below or made the Deed of Tax or any other actions required or permitted to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party hereunder shall have any cause of action against Parent for any action taken by Parent in reliance the Buyer to the extent the Buyer has relied upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful wilful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.9 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor 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 1.9 are inadequate; therefore, the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Company brings an action to enforce the provisions of this Section 1.9.
(v) as between himself and the other Company Stockholders the Stockholder's Representative shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Agreement and every such determination made in good faith shall be conclusive and binding on the Company Stockholders and the Stockholder's Representative may act on the opinion or advice of or information obtained from any solicitor, banker, broker, accountant or other expert and shall not be responsible for any loss occasioned by so acting;
(vi) he shall indemnify the Stockholder's Representative rateably according to his holding of the Shares from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgements, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Stockholder's Representative by the Buyer, the Company or any other person in connection with this Agreement and in suing for and recovering any sum due to the Company Stockholders or any of them under this Agreement; and
(vivii) the provisions of this Section 10.1 1.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Company Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From The Stockholders' Representative shall be remunerated for his services his usual professional and after the Closing, Parent shall cause the Surviving Company other charges for such services as may be provided by him at a rate not to provide exceed (Pounds)500 per day plus VAT (if applicable). All fees and expenses incurred by the Stockholders’ Representative, at his expense, with reasonable access ' Representative shall be paid by the Company Stockholders in proportion to information about the Surviving Company and the reasonable assistance their ownership of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship Shares as set forth in respect of any Company StockholderSchedule I attached hereto. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.----------
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissance Solutions Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following As of the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption date of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement each Stockholder hereby irrevocably appoints Insight Venture Partners, LLC (the “Stockholders’ Representative”), to be its, his or her true and lawful attorney-in-fact and agent, each with full power of substitution or resubstitution, to act solely and exclusively on behalf of such Stockholder with respect to the transactions contemplated by this Agreement, including the Merger, and to act on behalf of such Stockholder in any litigation or arbitration involving this Agreement, to do or refrain from doing all such further acts and things, and to execute all such documents (including the Escrow Agreement) as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) to act for such Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of such Stockholder;
(ii) to act for such Stockholder with regard to matters pertaining to litigation;
(iii) to execute and deliver all documents in connection with the transactions contemplated hereby or amendments thereto that the Stockholders’ Representative deems necessary or appropriate;
(iv) to receive funds, make payments of funds, and give receipts for funds on behalf of any Stockholder;
(v) to receive funds for the payment of expenses of such Stockholder and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of such Stockholder that the Stockholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as such Stockholder could do if personally present; and
(vii) to receive service of process in connection with any claims under this Agreement.
(b) In the event The appointment of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to coupled with an interest and shall be a irrevocable, and Buyer, Merger Subs and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative for in all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions matters referred to herein. Any action taken by the Stockholders’ Representative pursuant must be in writing and must be signed by the Stockholders’ Representative. All notices required to this Agreement be made or delivered by Buyer or Merger Subs to the Company (prior to the Effective Time) or the Escrow Agreement, including any agreement between Stockholders described above shall be made to the Stockholders’ Representative for the benefit of such Stockholder and Parent relating shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or Merger Subs, as applicable, to the defense or settlement such Stockholder with respect thereto. By their appointment of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of his appointment as the representatives of the Stockholders hereunder. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative reasonably believes to be in the best interest of the Stockholders and consistent with the obligations of the Stockholders under this Agreement, but none of the Stockholders’ Representative, Buyer, Merger Subs, the Surviving Corporation or the Buyer Indemnified Parties shall be responsible to any Stockholder for any damages which the Stockholders may suffer by the performance of the Stockholders’ Representative’s duties under this Agreement, except that the Stockholders’ Representative shall be solely responsible for all damages arising from willful violation of applicable Law by it or gross negligence in the performance of his duties under this Agreement. The Stockholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement and the Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be liable read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders hereby agree (a) to reimburse the Stockholders’ Representative for all out-of-pocket costs and expenses incurred by the Stockholders’ Representative under this Agreement and the Escrow Agreement, including fees for any act done attorneys or omitted hereunder other representative he may employ, and (b) to severally (without, for the avoidance of doubt, any right of contribution from any of the Surviving Corporation or under the Buyer Indemnitees) indemnify and hold harmless and defend the Stockholders’ Representative, his agents and assigns against all liabilities, claims, actions, damages, losses and expenses (including legal and other professional fees and expenses, and litigation costs) of any kind (whether known or unknown, fixed or contingent) arising out of or in connection with (x) the Stockholders’ Representative’s omissions to act, or actions taken, resulting from, arising out of, or incurred in connection with, or otherwise with respect to this Agreement and the Escrow Agreement, or (y) actions taken with respect to this Agreement and the Escrow Agreement as or reasonably believed to be in the scope of the Stockholders’ Representative while acting Representative’s authority, provided that he or his agent or assign has not acted with intentional misconduct or fraud in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of taking such good faith. action.
(c) The Stockholders’ Representative shall be entitled to rely, and shall be indemnified and held harmless fully protected in relying, upon any statements furnished to it by the Company Indemnitors against Company, any lossStockholder, liability Buyer, Merger Subs, or expense incurred without bad faith on the part of any other evidence deemed by the Stockholders’ Representative to be reliable, and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred act on the advice of counsel selected by it.
(d) In the event that the Stockholders’ Representative in connection with actions taken dies, becomes legally incapacitated or resigns (by providing Buyer and the Escrow Agent a minimum of 60 day advance written notice) from its position as Stockholders’ Representative, a successor Stockholders’ Representative pursuant (who shall either be a Stockholder or another Person reasonably acceptable to Buyer) shall be appointed in writing by a majority in interest of the terms Stockholders, such appointment to become effective upon the delivery of this Agreement or executed counterparts of such writing to Buyer and the Escrow Agreement (including Agent, together with an acknowledgement signed by the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the successor Stockholders’ Representative is hereby appointed named in such writing that he, she or it accepts the responsibility of successor Stockholders’ Representative and constituted the true agrees to perform and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf to act according to the terms be bound by all provisions of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled Agreement applicable to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) . Failing such appointment, the Stockholders’ Representative Escrow Agent or any Stockholder may use apply to a court of competent jurisdiction for the Expense Reserve to satisfy costs, expenses and liabilities appointment of the Stockholders’ Representative (in his capacity as the a successor Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The Owner and the Company hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9and, by virtue of the adoption Requisite Consent Action all of this Agreementthe Stockholders also, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇irrevocably make, constitute and appoint R▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, ▇▇., as their agent and attorney-in-fact (individually or collectively the representative "Stockholders' Representative") and authorize and empower him to fulfill the role of Stockholders’ Representative hereunder. As to the Stockholders who do not execute the Requisite Consent Action, the Company Indemnitors has joined this Section 14.02 to authorize the Stockholders' Representative to act in a ministerial and administrative capacity for the purposes of such Stockholders under this Agreement and the Escrow Agreement Agreement. If the Stockholders' Representative should die or become incapacitated, his or her successor shall be appointed within fifteen (15) calendar days of his or her death or incapacity by a majority of the “remaining Stockholders’ Representative”), and any such successor shall be a Stockholder or an officer of a Stockholder and shall agree in writing to accept such appointment. The choice of a successor Stockholders' Representative appointed in any manner permitted above shall be final and binding upon all of the Stockholders. The decisions and actions of any successor Stockholders' Representative shall be, for all purposes, those of the Stockholders' Representative as if originally named herein.
(b) In the event the Stockholders’ Representative diesEach Stockholder has made, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to constituted and shall select another representative to fill such vacancy appointed and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to execution of this Agreement or the Escrow AgreementRequisite Consent Action hereby or thereby irrevocably makes, including any agreement between constitutes and appoints each Stockholders' Representative acting alone as such person's true and lawful attorney-in-fact and agent, for such person and in such person's name, place and stead for all purposes necessary or desirable in order for the Stockholders’ ' Representative to take the actions contemplated by the Transaction Documents on behalf of the Stockholders, with the ability to execute and Parent relating deliver all instruments, certificates and other documents of every kind incident to the defense or settlement of any claims for which Parent or foregoing to all intents and purposes and with the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitorssame effect as such Stockholder could do personally, and no Company Indemnitors shall have the right to objecteach Stockholder hereby or thereby ratifies and confirms as his, dissenther or its own act, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and all that the Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable for any act done do or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted cause to be done pursuant to the advice provisions of counsel this Section 14.02. All notices under Section 14.01 and all other notices and communications directed to Stockholders under this Agreement shall be conclusive evidence given to Stockholders' Representative.
(c) The death of such good faith. incapacity of any Stockholder shall not terminate the authority and agency of the Stockholders' Representative.
(d) The Owner hereby agrees to indemnify the Stockholders’ ' Representative shall be entitled and to be indemnified and held hold him or her harmless by the Company Indemnitors against any and all loss, liability or expense incurred without bad faith on the part of the Stockholders’ ' Representative and arising out of or in connection with the acceptance his or administration of his/her duties hereunder or under as Stockholders' Representative, including the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket reasonable costs and expenses reasonably incurred by the Stockholders’ ' Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement defending against any claim or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) liability in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseherewith.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Each Stockholder, by the adoption of signing this Agreement, designates Edga▇ ▇. ▇▇▇ (▇▇, in the Company Indemnitors shall be deemed event that Edga▇ ▇. ▇▇▇ ▇▇ unable or unwilling to have designated serve or resigns, Alan ▇. ▇▇▇▇▇▇▇▇▇) ▇▇ ▇▇▇▇▇ as the be such Stockholders' representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(b) In the event UniCapital and Newco shall be entitled to rely upon any communication or writing given or executed by the Stockholders’ ' Representative. All communications or writings to be sent to Stockholders pursuant to this Agreement may be addressed to the Stockholders' Representative dies, becomes unable to perform his and any communication or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative writing so sent shall be deemed notice to be a all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders’ ' Representative for all purposes is authorized to accept deliveries, including any notice, on behalf of this Agreement and the documents delivered Stockholders pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorStockholder, with full power in his, his or her or its name and on his, his or her or its behalf to act according to the terms of this Agreement and in the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions absolute discretion of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors' Representative, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action takenin general to do all things and to perform all acts including, decision made without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) deemed advisable in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions Article 12 of this Section 10.1(e) are independent Agreement. This power of attorney and severable, are irrevocable all authority hereby conferred is granted subject to and coupled with an interestthe interest of such Stockholder and the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be enforceable notwithstanding irrevocable and shall not be terminated by any rights or remedies that act of any Company Indemnitor may have in connection with the transactions contemplated Stockholder, by this Agreement; and
(vi) the provisions operation of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderlaw, whether pursuant to testamentary disposition, the laws of descent and distribution by such Stockholder's death or otherwiseany other event.
(fd) From and after Notwithstanding the Closingforegoing, Parent shall cause the Surviving Company to provide the Stockholders’ ' Representative shall inform each Stockholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by such Stockholders' Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewithand, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it as provided in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not madeSection 19.3, shall be to recover from act as directed by the other Company Stockholders any payment holding a majority interest in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions Escrow Property (as the Stockholders’ Representative deems appropriate defined in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductSection 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each of the Stockholders and the Company designates ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (athe chief financial officer of ▇▇▇▇▇▇▇▇▇) In order as its representative (the "Stockholders' Representative") for all purposes under this Agreement, including receipt of disclosures, granting and/or executing consents or waivers, receiving notices and agreeing to efficiently administer certain matters and executing amendments and/or modifications to this Agreement. Any such receipt, grant, agreement and/or execution by the Stockholders' Representative shall be valid and binding on the Company and each of the Stockholders. The designation by the Company and the Stockholders of such representative may not be revoked without the written consent of Buyer. Each of the Stockholders also appoints the Stockholders' Representative as such Stockholder's custodian and attorney-in-fact to act for such Stockholder in connection with the Escrow Agreement arrangements as contemplated by the terms hereof and thereof, and the Stockholders' Representative hereby following accepts such appointment. It is agreed by each of the ClosingStockholders that the Escrow Fund to be held in custody by the Escrow Agent under the Escrow Agreement will be subject to the interests of the Buyer and the Stockholders' Representative as attorney-in-fact; that the arrangements made by such Stockholder hereunder and thereunder are irrevocable; and that the obligations of such Stockholder hereunder shall not be terminated by any acts of such Stockholder, or by operation of law, whether by the death or incapacity of such Stockholder or any other party to this Agreement or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur after the execution of this Agreement and before the Closing Date or the delivery of all or any portion of the Escrow Fund to Buyer, the Stockholders' Representative is nevertheless authorized and directed to hold and dispose of the Escrow Fund (and to instruct the Escrow Agent to hold and dispose of the Escrow Fund) in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Stockholder's Representative shall have received notice of such death, incapacity or other event. All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and the Buyer or the Escrow Agent relating to indemnification obligations of the Stockholders under this Agreement, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest making of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant payments with respect hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faithsame. The Stockholders’ ' Representative shall be entitled incur no liability to be indemnified and held harmless by the Company Indemnitors against Stockholders with respect to any loss, liability action taken or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred suffered by the Stockholders’ ' Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions notice, direction, instruction, consent, statement or decisions;
(iii) all actionsother documents believed by him to be genuinely and duly authorized, decisions and instructions nor for any other action or inaction with respect to the indemnification obligations of the Stockholders’ Representative shall be conclusive Stockholders under this Agreement, including the defense or settlement of any claims and binding upon all the making of payments with respect thereto, except to the Company Indemnitors, and no Company Indemnitor shall have any cause of action against extent resulting from the Stockholders’ ' Representative's own willful misconduct or negligence. The Stockholders' Representative for any action takenmay, decision made or instruction given by the Stockholders’ Representative in all questions arising under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement rely on the part advice of counsel, and for anything done, omitted or suffered in good faith by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ ' Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except the Stockholders. The Stockholders acknowledge and agree that the Stockholders’ ' Representative shall not be relieved may incur costs and expenses on behalf of the Stockholders in his capacity as Stockholders' Representative ("Representative Expenses"). Each of the Stockholders agrees to pay the Stockholders' Representative, promptly upon demand by the Stockholders' Representative therefor, such Stockholder's Proportionate Share of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductExpenses.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sunglass Hut International Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters (i) the distribution of the FOCUS Common Stock, (ii) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby following the Closinghereby, including and (iii) the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders may be entitled required to indemnification indemnify FOCUS or the Surviving Corporation pursuant to Section 9Article 8 hereof, by each of the adoption Stockholders hereby irrevocably constitutes and appoints, effective as of this Agreementthe Effective Date, Gerard H. Langeler (the Company Indemnitors shall be deemed to have designated "S▇▇▇▇▇▇▇▇▇▇▇ ▇' ▇▇▇▇▇ esentative"), as the representative its true and lawful agent and attorney-in-fact in respect of the Company Indemnitors for the purposes of transactions contemplated by this Agreement and the Escrow Agreement (the “Stockholders’ Representative”)Agreement.
(b) In By their approval of the event Merger and their appointment of Gerard H. Langeler as the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position▇▇▇▇▇▇▇▇▇▇▇▇' ▇▇presentative, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, agree that:
(i) FOCUS or the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Surviving Corporation shall be entitled able to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the settlement of any indemnification claim by FOCUS or made the Surviving Corporation pursuant to Article 8 hereof or any other actions required to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party hereunder shall have any cause of action against Parent FOCUS or the Surviving Corporation for any action taken by Parent FOCUS or the Surviving Corporation in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) Subsection 1.09 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the Merger and the other transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the provisions of this Subsection 1.09 are inadequate; therefore, FOCUS and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if FOCUS or the Surviving Corporation brings an action to enforce the provisions of this Subsection 1.09; and
(viv) the provisions of this Section 10.1 Subsection 1.09 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Each Stockholder, by the adoption of signing this Agreement, the Company Indemnitors shall be deemed to have designated designates Wayn▇ ▇▇▇▇▇▇▇ (▇▇, in the event that Wayn▇ ▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve or resigns, Stua▇▇ ▇▇▇▇▇) ▇▇ as the be such Stockholders' representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(b) In the event UniCapital and Newco shall be entitled to rely upon any communication or writing given or executed by the Stockholders’ ' Representative. All communications or writings to be sent to Stockholders pursuant to this Agreement may be addressed to the Stockholders' Representative dies, becomes unable to perform his and any communication or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative writing so sent shall be deemed notice to be a all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders’ ' Representative for all purposes is authorized to accept deliveries, including any notice, on behalf of this Agreement and the documents delivered Stockholders pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorStockholder, with full power in his, his or her or its name and on his, his or her or its behalf to act according to the terms of this Agreement and in the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions absolute discretion of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors' Representative, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action takenin general to do all things and to perform all acts including, decision made executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) deemed advisable in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions Article 12 of this Section 10.1(e) are independent Agreement. This power of attorney and severable, are irrevocable all authority hereby conferred is granted subject to and coupled with an interestthe interest of such Stockholder and the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be enforceable notwithstanding irrevocable and shall not be terminated by any rights or remedies that act of any Company Indemnitor may have in connection with the transactions contemplated Stockholder, by this Agreement; and
(vi) the provisions operation of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderlaw, whether pursuant to testamentary disposition, the laws of descent and distribution by such Stockholder's death or otherwiseany other event.
(fd) From and after Notwithstanding the Closingforegoing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Stockholder Representative shall not have by reason inform the other Stockholder of this Agreement a fiduciary relationship in respect all notices received, and of all actions, decisions, notices and exercises of any Company Stockholder. The Stockholders’ Representative shall not rights, power or authority proposed to be liable to any Company done, given or taken by such Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement By virtue of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this AgreementAgreement and the Transactions, including the approval of the principal terms of the Merger and the consummation of the Merger, or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Indemnitors Securityholder shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appointed the designation of, and hereby designates, Shareholder Representative Services LLC as the representative Stockholders’ Representative as of the Company Indemnitors Closing for the all purposes of in connection with this Agreement and any agreement ancillary hereto, including (a) to give and receive notices and communications to Parent for any purpose under this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
Additional Agreements; (b) In to act on behalf of Company Securityholders in accordance with the event provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger; and (c) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, for the Company Indemnitors who hold a majority in interest accomplishment of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faithforegoing. The Stockholders’ Representative shall may resign at any time. Such agency may be entitled to be indemnified and held harmless changed by the Company Indemnitors against any lossSecurityholders from time to time upon no less than twenty (20) days’ prior written notice to Parent; provided, liability however, that the Stockholders’ Representative may not be removed unless holders of a majority of the Company Securities (on an as converted or expense incurred without bad faith exercised basis) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the part Effective Time. No bond shall be required of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow AgreementRepresentative. The Stockholders’ Representative shall be entitled will incur no liability of any kind with respect to recover any out-of-pocket costs and expenses reasonably incurred action or omission by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) ’s services pursuant to this Agreement and any agreement ancillary hereto, except in the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities event of the Stockholders’ Representative (in his capacity as liability directly resulting from the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment action or distribution omission pursuant to the advice of payments made by it in good faithcounsel. The Company Securityholders will indemnify, defend and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that hold harmless the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossand all losses, liability 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 expense arising in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any act agreement ancillary hereto, in each case as such Representative Loss is suffered or omission as 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 Stockholders’ Representative, except for any liability imposed by Legal Requirements for the Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Stockholders’ Representative from the funds in the Expense Fund; provided that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Company Securityholders 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 Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 12.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will wire $15,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. Neither the Company nor the Company Securityholders will receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ 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 following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Expense Fund to the Company.
Appears in 1 contract
Stockholders’ Representative. 6.01 The Stockholders, and each of them, hereby appoint the Stockholders' Representative as their agent to (i) represent, act for and on behalf of, and bind each of the Stockholders in the performance of all of their obligations arising from or relating to this Escrow Agreement, including, without limitation (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement execution and delivery of any claims for which Parent Indemnitees may document, certificate or agreement required under this Escrow Agreement to be entitled to indemnification pursuant to Section 9, delivered by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
; (b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority negotiation and settlement of claims of Vizacom in interest respect of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement Escrowed Property and the documents delivered pursuant hereto.
making of any objection to such claims; and (c) All decisions the representation of the Stockholders at any arbitration or litigation in respect of the foregoing; (ii) give and actions by the Stockholders’ Representative receive notices and receive service of process under or pursuant to this Agreement or the Escrow Agreement; and (iii) to represent, including any agreement between act for, and bind each of the Stockholders’ Representative and Parent relating to Stockholders in the defense or settlement performance of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right their obligations arising from or related to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the this Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ ' Representative hereby accepts such appointment.
(ii) Parent 6.02 In the event that the Stockholders' Representative shall resign or otherwise be unable to fulfill its duties hereunder, a successor Stockholders' Representative shall be selected by the Stockholders entitled to rely conclusively on a majority of the instructions and decisions given Escrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or made replace the Stockholders' Representative for any reason, any such Stockholders' Representative may be so removed or replaced by the Stockholders’ Representative as Stockholders entitled to any receive a majority of the matters described in this Section 10.1(e)such Escrowed Property. Any decision, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions act, consent or decisions;
(iii) all actions, decisions and instructions instruction of the Stockholders’ ' Representative shall constitute a decision of the Stockholders and shall be conclusive and binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitor shall have Vizacom and the Escrow Agent may rely upon any cause of action against the Stockholders’ Representative for any action takensuch decision, decision made act, consent or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) ' Representative as being the Stockholders’ Representative may use the Expense Reserve to satisfy costsdecision, expenses and liabilities act, consent or instruction of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Stockholders’ Representative. (aWithout limiting the generality of Section 5(a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement Stockholder hereby absolutely, unconditionally and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative diesirrevocably, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges covenants and agrees that the Stockholders’ Representative shall not be obligated is irrevocably appointed to take act as the representative, agent and attorney-in-fact for the Stockholder in its capacity as an Equityholder for all purposes under the Merger Agreement, the Escrow Agreement and the Payments Administration Agreement, and any actions and shall be entitled agreement or instrument entered into or delivered in connection with the Mergers (including with respect to take such actions as all post-Closing matters requiring any action or decision by the Stockholder). Without limiting the generality of the foregoing, the Stockholders’ Representative deems appropriate shall be the exclusive representative, agent and attorney-in-fact for and on behalf of the Stockholder, with full power and authority to exercise any other rights to: (i) execute and deliver all documents necessary or desirable to carry out the intent of the Merger Agreement, the Escrow Agreement and any other Additional Agreements, (ii) serve as the named party with respect to any such claims on behalf of the Stockholder under the Merger Agreement, (iii) give and receive on behalf of the Stockholder any and all notices and documents from or to the Stockholder thereunder or under the Merger Agreement and any Additional Agreement, (iv) grant any consent, approval or waiver on behalf of the Stockholder under the Merger Agreement and any Additional Agreement, (v) pay amounts therefrom in its sole discretionconnection with the Merger Agreement and enforcement of rights thereunder, and (vi) make all other elections or decisions contemplated by the Merger Agreement and any Additional Agreement on behalf of the Stockholder. Each Company The Stockholder further agrees to indemnify does hereby give and hold grant unto the Stockholders’ Representative harmless from the power and against authority to do and perform each such act and thing whatsoever that the Stockholder may or is required to do pursuant to the Merger Agreement and all Additional Agreements, and to amend, modify or supplement any lossof the foregoing in the Stockholder’s name, liability place and stead, as if the Stockholder had personally done such act. The death, incapacity, dissolution, liquidation, insolvency or expense arising in connection with any act bankruptcy of the Stockholder shall not terminate such appointment or omission as the authority and agency of the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct. The power-of-attorney granted hereunder is coupled with an interest and is irrevocable.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (SoFi Technologies, Inc.)
Stockholders’ Representative. (a) In order to administer efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement implementation of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, this Agreement by the adoption Stockholders, the Stockholders hereby designate ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as their representative (the "Stockholders' Representative"). ----------------------------
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the implementation of Sections 1.4 and 10 of this Agreement on behalf of the Stockholders, (ii) to take all actions necessary under the Tax Escrow Agreement, the Indemnification Escrow Agreement (as hereinafter defined) and the Tax Matters Agreement and (iii) to give and receive all notices required to be given under this Agreement, the Company Indemnitors shall Tax Escrow Agreement and the Indemnification Escrow Agreement.
(c) The Stockholders' Representative may be deemed to have designated removed and a successor named by the trustee(s) of the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1984 Revocable Trust (the "▇▇▇▇▇▇▇ as Trust") upon written notice to the representative of the Company Indemnitors for the purposes of this Agreement Stockholders' Representative, Buyer -------------- and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative successor shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement; however, no change in the Stockholders' Representative shall be effective until Buyer is given notice of such change by the Stockholders.
(d) By their execution of this Agreement, the Stockholders agree that:
(i) Buyer shall be able to rely conclusively on the written instructions and decisions of the Stockholders' Representative as to any actions required or permitted to be taken by the Stockholders or the Stockholders' Representative under Sections 1.4 and 10 of this Agreement and under the Tax Escrow Agreement, the Indemnification Escrow Agreement and the documents delivered pursuant hereto.Tax Matters Agreement, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon such written instructions or written decisions of the Stockholders' Representative;
(cii) All all written decisions and actions by instructions of the Stockholders’ ' Representative pursuant in relation to Sections 1.4 and 10 of this Agreement or and under the Tax Escrow Agreement, including any agreement between the Stockholders’ Representative Indemnification Escrow Agreement and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Tax Matters Agreement shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision the same or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under Sections 1.4 and 10 of this Agreement or the Escrow Agreement, except for gross negligence, fraud or willful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iviii) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities remedies available at law for any breach of the Stockholders’ Representative (in his capacity as provisions of this Section 1.8 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the Stockholders’ Representative) in connection with matters related necessity of proving damages if Buyer brings an action to enforce the provisions of this Agreement and the Company Ancillary Agreements;Section 1.8; and
(viv) the provisions of this Section 10.1(e) 1.8 are independent and severable, are shall constitute an irrevocable and power of attorney, coupled with an interestinterest and surviving death, granted by the Stockholders to the Stockholders' Representative and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, and personal representatives and successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholder.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(ge) The Stockholders’ ' Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken duties, responsibilities or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, authority except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faiththose expressly set forth herein, and if any such apportionment no implied covenants, duties, obligations, authority or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, liabilities shall be to recover from implied by the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductappointment hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) In order Each Stockholder hereby irrevocably appoints JLL Partners, Inc. (the "Stockholders' Representative") as its agent and attorney-in-fact, with full power, by and in the name of such Stockholder, to efficiently administer certain matters execute any and all instruments or other documents on behalf of such Stockholder, and to do any and all other acts or things on behalf of such Stockholder, which the Stockholders' Representative may deem necessary or advisable, or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the transactions contemplated hereby by this Agreement and the Merger Agreement and the performance of all obligations hereunder or thereunder at or following the Closing. Without limiting the generality of the foregoing, the Stockholders' Representative shall have the full and exclusive authority to (i) agree with Purchaser with respect to any matter or thing required or deemed necessary by the Stockholders' Representative in connection with the provisions of this Agreement calling for the agreement of Stockholders, give and receive notices and receive service of process on behalf of all Stockholders, and act on behalf of Stockholders in connection with any matter as to which Stockholders are or may be obligated under the Merger Agreement or this Agreement, all in the absolute discretion of the Stockholders' Representative; provided, however, that the Stockholders' Representative shall not be required to make any payments on a behalf of any Stockholder pursuant to Article IV hereof; (ii) in general, do all things and perform all acts, including the defense without limitation executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9documents contemplated by, or deemed by the adoption Stockholders' Representative to be necessary or advisable in connection with, the Merger Agreement or this Agreement; and (iii) take all actions necessary or desirable in connection with the performance of obligations under Articles II and III of the Merger Agreement, including to withhold funds for satisfaction of expenses or other liabilities and obligations.
(b) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Stockholders, the Stockholders' Representative shall not agree to any amendment or modification of this Agreement, enter into any other contract, agreement, arrangement or understanding or execute any document or instrument, that would: (i) expand the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative indemnification obligations of the Company Indemnitors for Stockholders under Article IV of this Agreement; (ii) impose any obligations on the purposes Stockholders not set forth in this Agreement as of the date hereof (other than administrative, technical or procedural matters relating to the performance of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event discharge of the Stockholders’ Representative dies, becomes unable to perform his ' obligations hereunder); or her responsibilities hereunder or resigns from such position, (iii) materially alter the Company Indemnitors who hold a majority in interest economic terms of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes Merger as set forth in the Merger Agreement as of this Agreement and the documents delivered pursuant heretodate hereof.
(c) The Stockholders shall cooperate with the Stockholders' Representative and any accountants, attorneys or other agents whom it may retain to assist in carrying out its duties hereunder. All decisions and actions by the Stockholders’ ' Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders' Representative may communicate with any such decision Stockholder or actionany other Person concerning its responsibilities hereunder, but it is not required to do so. The Stockholders' Representative has a duty to serve in good faith the interests of the Stockholders and to perform its designated role under this Agreement, but the Stockholders' Representative shall have no financial liability whatsoever to any Person relating to its service hereunder (including any action taken or omitted to be taken), except that it shall be liable for harm which it directly causes by its gross negligence or an act of willful misconduct.
(d) As between The Stockholders severally but not jointly hereby agree to indemnify and hold, to the Company Indemnitors and extent of their Percentage Interest set forth on Schedule I hereto, harmless the Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement loss, reasonable expense (including the hiring reasonable attorney's fees) or other liability arising out of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of its service as Stockholders' Representative under this Agreement, the Company Indemnitors other than for harm directly caused by its gross negligence or an act of willful misconduct; provided, however, that no Stockholder shall be deemed required to have agreed, in addition to the foregoing, that:
(i) indemnify the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitoragainst any loss, with full power in hisexpense or liability arising from an action, her suit, proceeding or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made other claim brought by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company another Stockholder. The Stockholders’ ' Representative may resign at any time by notifying in writing Purchaser and the Stockholders. The Stockholders' Representative shall not be liable to appoint any Company Stockholder for any action taken substitute or omitted by it hereunder or under any other document contemplated herebyreplacement Stockholders' Representative without the prior written consent of Stockholders holding a majority of the aggregate percentage interest set forth on Schedule I hereto, or in connection therewith, except that the Stockholders’ Representative which consent shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconductunreasonably withheld. The term Stockholders’ ' Representative shall not be liable to include any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductsubstitute appointed pursuant hereto.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following Upon approval of the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this AgreementMerger, the Company Indemnitors Stockholders shall be have been deemed to have designated ▇▇▇▇▇▇▇appoint ▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement true and the Escrow Agreement lawful agent and attorney-in-fact (the “Stockholders’ Representative”).
(b) In of the event Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the Stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders’ Representative dies, becomes unable to perform his do or her responsibilities hereunder or resigns refrain from doing all such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to further acts and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitorsthings, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any execute all such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, documents as the Stockholders’ Representative shall not be liable for any act done deem necessary or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
(ii) to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Merger Price, and to do or refrain from doing the actions further described in the Paying Agent Procedures;
(iv) to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement and the Paying Agent Procedures as fully and completely as the Stockholders could do if personally present; and
(viv) to receive service of process in connection with any claims under this Agreement. The appointment of the provisions of this Section 10.1 Stockholders’ Representative shall be binding upon the executors, heirs, legal representatives, successors deemed coupled with an interest and assigns of each Company Indemnitorshall be irrevocable, and any references in this Agreement to the Company Indemnitors shall mean Parent, Federal and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company Corporation may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to provide herein. If ▇▇▇▇ ▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The successor Stockholders’ Representative shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇. If ▇▇▇▇▇▇ ▇▇▇▇▇▇ subsequently resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders which held a majority of the Company Common Stock immediately prior to the Closing. If any individual Stockholders 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 Stockholders’ Representative pursuant to this Section 2.8 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by reason Parent, Federal or the Surviving Corporation to the Stockholders shall be made to the Stockholders’ Representative for the benefit of this Agreement a fiduciary relationship the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of any Company Stockholderhis appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall not act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be liable to any Company Stockholder for any action taken or omitted by it hereunder or in the best interest of the Stockholders and consistent with the obligations under any other document contemplated herebythis Agreement, or in connection therewith, except that but the Stockholders’ Representative shall not be relieved responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of any liability imposed his duties under this Agreement, other than loss or damage arising from willful violation of the law by Legal Requirements for gross negligence or willful misconductthe Stockholders’ Representative of his duties under this Agreement. The Stockholders’ Representative and his heirs and personal or legal representatives shall not be liable to held harmless by the Stockholders from, and indemnified against any Company Stockholder loss or damages arising out of or in connection with the performance of his obligations in accordance with the provisions of this Agreement, except for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount foregoing arising out of the willful violation of the law by the Stockholders’ Representative or of his duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the contrary herein, the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, have no liability or expense arising obligation to any Parent Indemnified Party otherwise than, and only to the extent of, his individual liability as a Stockholder as set forth in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductSection 6.3.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the ClosingThe Company, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative on behalf of the Company Indemnitors for Stockholders, hereby irrevocably constitutes and appoints in accordance with Section 4(f) of the purposes of this Agreement and the Escrow Agreement Securityholders Agreement, Carlyle CIM Agent, L.L.C. (the “Stockholders’ Representative”)) as the true and lawful agent and attorney-in-fact of each of the Company Stockholders, with full powers of substitution to act individually in the name, place and stead of each of the Company Stockholders with respect to the transactions contemplated by this Agreement and the other Transaction Documents, as the same may be from time to time amended, and to individually do or refrain from doing all such further acts and things, and to execute all such documents, as he shall deem necessary or appropriate in connection with any of the transactions contemplated hereby and thereby.
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time Buyer shall be authorized entitled to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions rely exclusively, without any independent verification or investigation, upon any instruction or other communication given by the Stockholders’ Representative pursuant to this Agreement and shall not be liable in any manner whatsoever for any action taken or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding not taken in reliance upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative. Any payments made, at the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithRepresentative’s request and instruction, and any act done or omitted by Buyer to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel shall fully discharge Buyer from any liability to any Company Stockholder in connection with such payment, as fully and the incurring of legal fees completely as if such payment had been made directly to such Company Stockholder. Buyer hereby agrees, and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed permitted, to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed accept and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by actions of the Stockholders’ Representative as if it were the action of a Company Stockholder or the Company Stockholders. Notwithstanding anything to any of the matters described contrary contained herein, following the Closing, except to the extent included in this Company Working Capital as finally determined pursuant to Section 10.1(e)1.10, and no party Insight Company shall have any cause obligation or liability in respect of action against Parent for costs or expenses incurred by or on behalf of any action taken by Parent in reliance upon any such instructions Company Stockholder or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Each Stockholder, by the adoption of signing this Agreement, designates Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇, in the Company Indemnitors shall be deemed to have designated event that Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, Gary ▇▇▇▇▇▇) ▇▇ as the be such Stockholders' representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(b) In the event UniCapital and Newco shall be entitled to rely upon any communication or writing given or executed by the Stockholders’ ' Representative. All communications or writings to be sent to Stockholders pursuant to this Agreement may be addressed to the Stockholders' Representative dies, becomes unable to perform his and any communication or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative writing so sent shall be deemed notice to be a all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders’ ' Representative for all purposes is authorized to accept deliveries, including any notice, on behalf of this Agreement and the documents delivered Stockholders pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorStockholder, with full power in his, his or her or its name and on his, his or her or its behalf to act according to the terms of this Agreement and in the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions absolute discretion of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors' Representative, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action takenin general to do all things and to perform all acts including, decision made without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) deemed advisable in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions Article 12 of this Section 10.1(e) are independent Agreement. This power of attorney and severable, are irrevocable all authority hereby conferred is granted subject to and coupled with an interestthe interest of such Stockholder and the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be enforceable notwithstanding irrevocable and shall not be terminated by any rights or remedies that act of any Company Indemnitor may have in connection with the transactions contemplated Stockholder, by this Agreement; and
(vi) the provisions operation of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderlaw, whether pursuant to testamentary disposition, the laws of descent and distribution by such Stockholder's death or otherwiseany other event.
(fd) From Notwithstanding the foregoing, the Stockholder Representative shall inform each Stockholder of all notices received, and after the Closingall actions, Parent shall cause the Surviving Company decisions, notices and exercises of any rights, power or authority proposed to provide the Stockholders’ be done, given or taken by such Stockholder Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions act as directed by the Stockholders’ Representative deems appropriate Stockholders holding a majority interest in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising Escrow Property (as defined in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductSection 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. (a) In order The Stockholders hereby nominate, constitute and appoint an individual to efficiently administer certain matters contemplated hereby following be designated by ▇▇▇▇ Capital Venture Fund 2005, L.P. as the Closingrepresentative of the Escrow Fund Participants (the “Stockholders’ Representatives”), with full power of substitution, with the full right power and authority to act on their behalf under this Agreement and the Escrow Agreement, to serve as their lawfully designated attorney-in-fact (which shall include, without limitation, the right, power and authority to contractually obligate, execute, deliver, acknowledge, certify, file and record on behalf of the Escrow Fund Participants (in the name of any or all of the Escrow Fund Participants or otherwise) any and all documents deemed necessary, appropriate or advisable by the Stockholders’ Representative in the Stockholders’ Representative’s sole discretion, including the defense any amendment to or settlement waiver of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of rights or provisions under or in this Agreement, the Company Indemnitors Escrow Agreement, or any other documents executed in connection with this Agreement, the Escrow Agreement, or otherwise), to give and receive notices and communications under this Agreement for the Escrow Fund Participants (including, without limitation, with respect to claims by Parent and the Parent Damaged Parties), to object to any notices received hereunder, 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 other actions of any kind or nature whatsoever deemed necessary, appropriate, or advisable in the sole discretion and judgment of the Stockholders’ Representative for the accomplishment of the foregoing. No bond shall be deemed required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for his services. Notices or communications to have designated or from the Stockholders’ Representative shall constitute notice to or from each Escrow Fund Participant. ▇▇▇▇ Capital Investors, LLC hereby designates J. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “initial Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the The Stockholders’ Representative shall not be liable to the Escrow Fund Participants for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting Representative, except in good faiththe case of bad faith or willful misconduct, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faiththe absence of bad faith or willful misconduct. The Escrow Fund Participants shall severally indemnify, defend and hold harmless the Stockholders’ Representative shall be entitled to be indemnified (together with any of its Affiliates and held harmless by the Company Indemnitors any of their respective heirs, successors, assigns, partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons) against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her the Stockholders’ Representative’s duties hereunder hereunder, other than as a result of fraud or under willful misconduct by the Escrow AgreementStockholders’ Representative (or any such persons). The Stockholders’ Representative may be removed or replaced, and his successor designated and appointed, at any time for any reason or for no reason with the written consent of the Requisite Stockholders; provided, however, that such removal or replacement shall not be effective until Parent and the Escrow Agent have been notified in writing by the Requisite Stockholders which notice shall identify the replacement Stockholders’ Representative.
(c) The Stockholders’ Representative shall have and be granted reasonable access to information about the Company post-Closing and the reasonable assistance of the Company’s officers, agents, and representatives post-Closing for purposes of performing the Stockholders’ Representative’s duties and exercising the Stockholders’ Representative’s rights hereunder, provided, however, that the Stockholders’ Representative shall treat confidentially and not disclose any confidential information from or about the Company to any person, except (i) on a need to know basis to individuals who agree to treat such information confidentially or (ii) as required by any applicable law, regulation or order of a court or other binding legal process. The Stockholders’ Representative will not be entitled to recover receive any out-of-pocket costs compensation from Parent, Merger Sub or the Company in connection with this Agreement. Any fees and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or will be paid by the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed severally to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted Parent, Merger Sub and the true and lawful attorney-in-fact of each Company Indemnitor, shall have no obligation with full power in his, her or its name and on his, her or its behalf to act according respect to the terms payment of this Agreement any such fees and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointmentexpenses.
(iid) Parent shall be entitled to rely conclusively on the instructions and decisions given A decision, act, consent or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions instruction of the Stockholders’ Representative shall be conclusive and binding upon constitute a decision of all of the Company IndemnitorsEscrow Fund Participants and shall be final, binding and no Company Indemnitor shall have conclusive upon each of the Escrow Fund Participants. Parent may rely upon any cause decision, act, consent, or instruction of action against the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Escrow Fund Participant. Parent and the Surviving Corporation are hereby relieved from any liability to any person for any action takenacts done by Parent or the Surviving Corporation or any of their agents, decision made representatives, or Affiliates in accordance with any decision, act, failure to act, consent, waiver, amendment, approval or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve . The Escrow Fund Participants shall not bring any action or claim against any Parent Damaged Party with respect to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as any action or inaction by the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;.
(ve) The Escrow Fund Participants hereby agree, acknowledge, recognize and intend that the provisions power of this attorney granted in Section 10.1(e6.9(a), above: (i) are independent and severable, are irrevocable and is coupled with an interest, and shall (ii) may be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated delegated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about and (iii) shall survive the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect death or incapacity of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductEscrow Fund Participant.
Appears in 1 contract
Sources: Merger Agreement (Compuware Corp)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9The Company Stockholders, by approving this Agreement and the adoption of this Agreementtransactions contemplated hereby, the Company Indemnitors shall be deemed to have designated ▇▇▇▇hereby irrevocably appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as Stockholders’ Representative, including to act as their agent and attorney-in-fact for purposes of Section 10 and the representative Escrow Agreement, and consent to the taking by the Stockholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement and the Escrow Agreement (including the exercise of the power to authorize delivery to Parent of the Escrow Funds in satisfaction of claims by Parent or otherwise, 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 otherwise, resolve any claims made pursuant to Section 10 and the Escrow Agreement, and to take all actions necessary in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing). By his execution of the Escrow Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative for purposes of Section 10 and the Escrow Agreement. Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 10 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 on behalf of any Company Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Company Stockholder by the Stockholders’ Representative, as fully binding upon such Company Stockholder. The rights and obligations of the Stockholders’ Representative shall be as set forth in the Escrow Agreement. If the Stockholders’ Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Company Indemnitors Stockholders, then the Escrow Contributors who held a majority of the voting Company Capital Stock immediately prior to the Merger (the “Requisite Former Company Stockholders”) are authorized and shall, within 10 days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Stockholders’ Representative” for the purposes of this Agreement and the Escrow Agreement (the “Agreement. If for any reason there is no Stockholders’ Representative”)Representative at any time, all references herein to the Stockholders’ Representative shall be deemed to refer to the Requisite Former Company Stockholders.
(b) In The Stockholders’ Representative shall have no liability to any Company Stockholder, Parent or Surviving Corporation with respect to the event execution of his duties and responsibilities, except with respect to gross negligence or willful misconduct. Furthermore, the Indemnitors shall indemnify and hold harmless the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest for any (i) Damages (including Damages arising out of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes negligence of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement Representative) arising out of the acceptance or administration of the Escrow Agreement, including any agreement between Stockholders’ Representative’s duties hereunder and (ii) reasonable fees and expenses incurred in the fulfillment of the Stockholder’s Representative’s duties and responsibilities. The Indemnitors shall severally and not jointly (indemnify the Stockholders’ Representative and Parent relating to hold the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Stockholder’s Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder.
(c) Each Company Stockholder, by his/, her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms its approval of this Agreement or and/or the Escrow Agreement (including acceptance of the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreementpayments provided hereby, the Company Indemnitors shall be deemed to have agreedagrees, in addition to and not in limitation of the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by, or believed in good faith by Parent to be given or made by, the Stockholders’ Representative as to the settlement of any claims for indemnification by Parent or the Surviving Corporation or any of them pursuant to Section 10 hereof, or any other actions required or permitted to be taken by the matters described in this Section 10.1(e)Stockholders’ Representative hereunder, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Stockholder Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 11.1 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and;
(viiv) remedies available at law for any breach of the provisions of this Section 10.1 11.1 are inadequate; therefore, Parent and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Parent or the Surviving Corporation or any of them brings an action to enforce the provisions of this Section 11.1; and
(v) The provisions of this Section 11.1 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholder.
(fd) From and after At the Closing, Parent shall cause to be deposited with the Surviving Company to provide Escrow Agent the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company StockholderEscrow Amount. The Stockholders’ Representative shall not Escrow Amount (and earnings thereon) may be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission applied as the Stockholders’ Representative, except for in its sole discretion, determines appropriate to defray, offset, or pay any charges, fees, costs, liabilities or expenses of the Stockholders’ Representative incurred in connection with the transactions contemplated by this Agreement or the Escrow Agreement. The balance of the Stockholders’ Representative Escrow Amount held pursuant to this Section 11.1(d), if any, and any income earned thereon, shall be deposited into the Non-Appraisal Rights Escrow Fund and distributed to the Escrow Contributors as part of and on the same terms and conditions as the distribution of the Non-Appraisal Rights Escrow Fund, if any, at the end of the Non-Appraisal Rights Indemnification Claim Period. Notwithstanding the foregoing, following the termination of the Non-Appraisal Rights Escrow Fund pursuant to the terms of the Escrow Agreement, the Stockholders’ Representative Escrow shall only be so distributed when the Stockholders’ Representative determines, in its sole discretion, that such distribution is appropriate; provided, however, that any such distribution shall be at the Escrow Contributors’ expense. Parent and Merger Sub shall have no liability imposed or responsibility to the Escrow Contributors with respect to the Stockholders’ Representative Escrow Amount or the actions and responsibilities of the Stockholders’ Representative contemplated by Legal Requirements for gross negligence or willful misconductthis Section 11.1(d).
Appears in 1 contract
Sources: Merger Agreement (Volcano Corp)
Stockholders’ Representative. (a) In order to administer efficiently administer (i) the implementation of the Agreement by certain matters contemplated hereby following of the ClosingStockholders, including (ii) the defense or waiver of any condition to the obligations of such Stockholders, and (iii) the settlement of any claims for which Parent Indemnitees may be entitled dispute with respect to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated Former Management Stockholders, the Management Holders and the Berkshire Stockholders, with the exception of Berkshire and Berkshire Partners, (the "Designating Stockholders") hereby designate Russ▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”").
(b) The Designating Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Designating Stockholders and the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement with respect to the Designating Stockholders and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Designating Stockholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to Buyer.
(c) Each Designating Stockholder hereby specifically authorizes and directs the Stockholders' Representative to execute on behalf of such Designating Stockholder the certificates to be delivered to Buyer by the Representing Parties and the Stockholders pursuant to Section 6.1 unless such authorization and direction shall have been revoked by such Designating Stockholder in writing prior to the Closing.
(d) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder legally incapacitated or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time Robe▇▇ ▇. ▇▇▇ll shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and unless otherwise determined by the documents delivered pursuant heretoDesignating Stockholders owning a majority of the shares of New Stock held (on a fully diluted basis) by all Designating Stockholders; however, no change in the Stockholders' Representative shall be effective until Buyer is given notice of such change by one or more of the Designating Stockholders.
(ce) All decisions and actions by the Stockholders’ ' Representative pursuant to in accordance with this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsDesignating Stockholders, and no Company Indemnitors Designating Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(ef) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Designating Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ ' Representative as to any of actions required or permitted to be taken by the matters described in this Section 10.1(e)Designating Stockholders or the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Parent Buyer for any action taken by Parent Buyer in reliance upon any such the instructions or decisions;
decisions of the Stockholders' Representative; (iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Designating Stockholders and no Company Indemnitor Designating Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on by the part Stockholders' Representative; (iii) remedies available at law for any breach of the Stockholders’ Representative;
provisions of this Section 1.5 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.5; and (iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) 1.5 are independent and severable, are shall constitute an irrevocable and power of attorney, coupled with an interestinterest and surviving death, granted by the Designating Stockholders to the Stockholders' Representative and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this AgreementDesignating Stockholder.
(g) The All fees and expenses incurred by the Stockholders’ ' Representative shall not have be paid pro rata by reason the Designating Stockholders in accordance with their ownership of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductNew Common Stock.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of As used in this Agreement, the Company Indemnitors "Stockholders' Representative" shall be deemed to have designated mean Robe▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ any person appointed as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “a successor Stockholders’ Representative”)' Representative pursuant to Section 1.06(b) hereof.
(b) In During the event period ending upon the date when all obligations under this Agreement have been discharged (including all indemnification obligations hereunder and all obligations under the Escrow Agreement), the Stockholders who, immediately prior to the Closing, held Company Common Stock representing an aggregate number of shares of Company Common Stock which exceeded 50% of the amount of such Company Common Stock outstanding immediately prior to such time (a "Majority"), may, from time to time upon written notice to the Stockholders’ ' Representative and GRS, remove the Stockholders' Representative or appoint a new Stockholders' Representative to fill any vacancy created by the death, incapacitation, resignation or removal of the Stockholders' Representative. Furthermore, if the Stockholders' Representative dies, becomes unable to perform his incapacitated, resigns or her responsibilities hereunder or resigns from such positionis removed by a Majority, the Majority shall appoint a successor Stockholders' Representative to fill the vacancy so created. If the Majority is required to but has not appointed a successor Stockholders' Representative within 20 business days from a request by GRS to appoint a successor Stockholders' Representative, GRS shall have the right to appoint a Stockholders' Representative to fill any vacancy so created, and shall advise all those who were holders of Company Indemnitors who hold a majority in interest Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Escrow Fund at such time Majority of any successor Stockholders' Representative shall be authorized provided to and GRS promptly after it shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretohave been effected.
(c) All decisions The Stockholders' Representative shall be authorized to take any action and actions by the Stockholders’ Representative pursuant to make and deliver any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement (an "Instrument") which the Stockholders' Representative determines to be necessary, appropriate or desirable, and, in connection therewith, to hire or retain, at the sole expense of the Stockholders, such counsel, investment bankers, accountants, representatives and other professional advisors as he determines in his sole and absolute discretion to be necessary, advisable or appropriate in order to carry out and perform his rights and obligations hereunder. The Stockholders hereby grant the Stockholders' Representative the right and power to execute the Escrow Agreement, including any agreement between Agreement on their behalf with such changes or amendments thereto as the Stockholders’ ' Representative shall determine to be necessary or desirable in his sole and Parent relating to absolute discretion. Any party receiving an Instrument from the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors Stockholders' Representative shall have the right to objectrely in good faith upon such Instrument, dissent, protest or otherwise contest any such decision or actionand to act in accordance with the Instrument without independent investigation.
(d) As between GRS shall have no liability to any Stockholder or otherwise arising out of the Company Indemnitors and acts or omissions of the Stockholders’ ' Representative or any disputes among the Stockholders or with the Stockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders’ ' Representative shall not be liable for to satisfy any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant obligations it might have to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled Stockholders under this Agreement, any agreement referred to be indemnified and held harmless by the Company Indemnitors against any loss, liability herein or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Shareotherwise.
(e) By their adoption of this AgreementThe Stockholders shall indemnify, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) defend and hold harmless the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any lossand all claims, liability demands, actions, suits, causes of action, damages, costs and expenses (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or expense arising in connection with any act or omission as brought against the Stockholders’ ' Representative by any person arising out of the acts or omissions of the Stockholders' Representative or any disputes among the Stockholders, unless such Claims allegedly occurred as a result of the willful misconduct or negligence by the Stockholders' Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated Ni, Zhou Min is hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ appointed as the representative of the Company Indemnitors for the purposes of this Agreement agent and the Escrow Agreement attorney-in-fact (the “Stockholders’ Representative”).
) for each Stockholder, (bi) In to give and receive notices and communications to or by Parent and Purchaser for any purpose under this Agreement and the event Additional Agreements, (ii) 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 indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, (iii) to enter into and deliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to Parent, Purchaser and the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent, Purchaser and the Surviving Corporation in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative diesfor the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to time upon no less than twenty (20) days prior written notice to the Purchaser and, becomes unable to perform his or her responsibilities hereunder or resigns from such positionif after the Effective Time, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by Surviving Corporation, provided, however, that the Stockholders’ Representative pursuant may not be removed unless holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or the Escrow Agreement, including any agreement between change of the Stockholders’ Representative and Parent relating shall not be effective until written notice is delivered to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Purchaser. No bond shall be binding upon all required of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithfaith and in the exercise of reasonable business judgment. A decision, and any act done act, consent or omitted to be done pursuant to instruction of the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders of the Company and shall be entitled to be indemnified final, binding and held conclusive upon each of the Stockholders. The Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless by the Company Indemnitors against any loss, liability liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her his duties hereunder or under the Escrow Agreementhereunder. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described Notwithstanding anything in this Section 10.1(e)14.15 to the contrary, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representativesuch) in connection shall have no obligation or authority with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company indemnification claims against a Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconducta Purchaser Indemnitee under Section 11.1.
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Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is hereby appointed as the representative agent and attorney-in-fact for each of the Company Indemnitors for Stockholders to represent the purposes interests of the Stockholders and to take all actions and make all decisions necessary or appropriate in the judgment of the Stockholders’ Representative in connection with this Agreement and the Additional Agreements, including the power (i) to enter into and deliver the Escrow Agreement and the Earn-out Escrow Agreement on behalf of each of the Stockholders (other than the “Stockholders’ Representative”Bridge Lender in its capacity as the holder of the Bridge Loan Shares).
, (bii) In to make all determinations and issue all notices pursuant to Section 4.4 above and the event Earn-out Escrow Agreement on behalf of each of the Stockholders (other than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (ii) to defend, negotiate, settle or otherwise deal with claims under Article X hereof and under the Escrow Agreement on behalf of each of the Stockholders (other than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (iii) to defend, negotiate, settle or otherwise deal with any other litigation or dispute involving this Agreement, and (iv) after the Closing, to amend this Agreement; provided, that, unless the Stockholder Representative receives the written consent of 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement, the Stockholders’ Representative diesshall not enter into an amendment to this Agreement that would have required the approval of the Stockholders under applicable Law if it had been adopted prior to the Closing; provided, becomes unable to perform his further, that if any amendment disproportionately and adversely impacts a Stockholder (or her responsibilities hereunder or resigns from such positiongroup of Stockholders), the Company Indemnitors who hold a majority in interest written consent of the Escrow Fund at such time disproportionately impacted Stockholder (or group of Stockholders) shall also be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a required. The Stockholders’ Representative for all purposes of this Agreement and may be removed by the documents delivered pursuant hereto.
Stockholders from time to time upon no less than twenty (c20) All decisions and actions by days’ prior written notice to the Purchaser Parties and, if after the Closing, the Purchaser, provided, however, that the Stockholders’ Representative pursuant may not be removed unless holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement. Any removal or the Escrow Agreement, including any agreement between change of the Stockholders’ Representative and Parent relating shall not be effective until written notice is delivered to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9Purchaser, as applicable. No bond shall be binding upon all required of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithfaith and in the exercise of reasonable business judgment. In connection with the performance of his rights and obligations hereunder, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled have the right at any time and from time to be indemnified time to select and held engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Stockholders’ Representative may deem necessary or desirable from time to time, at the cost and expense of the Company, but subject to the indemnification obligations of Article X. The Company shall indemnify the Stockholders’ Representative and hold it harmless by the Company Indemnitors against any lossLoss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover hereunder, including any out-of-pocket costs and expenses reasonably and legal fees and other legal costs incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement Representative. A decision, act, consent or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions instruction of the Stockholders’ Representative shall be conclusive and binding upon shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Company IndemnitorsStockholders and shall be final, binding and no Company Indemnitor shall have any cause conclusive upon each of action against the Stockholders. The appointment of the Stockholders’ Representative for any action taken, decision made or instruction given by will be deemed coupled with an interest and will be irrevocable without the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part consent of the Stockholders’ Representative;
(iv) , and shall survive the Stockholders’ Representative may use the Expense Reserve to satisfy costsdeath, expenses and liabilities incapacity, or bankruptcy of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the any Stockholder. The provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 13.15 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance Stockholder. All of the officers indemnities, immunities, rights, releases and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable powers granted to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative under this Agreement shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, survive the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductClosing.
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Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement By voting in favor of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Indemnitors Stockholder (other than Dissenting Stockholders) and the holders of Warrants or Options (the “Company Equityholders”), without any further action of any of the Company Equityholders or the Company, hereby appoints and constitutes Fortis Advisors LLC as the Stockholders’ Representative for and on behalf of the Company Equityholders and as his, her or its attorney-in-fact and exclusive agent to execute and deliver this Agreement, the Escrow Agreement and the Paying Agent Agreement (collectively, the “Representative Agreements”) and for all other purposes hereunder and thereunder, and to take any and all actions and make any and all decisions required or permitted to be taken or made by the Stockholders’ Representative under the Representative Agreements or the Stockholders’ Representative Engagement Agreement, with full authority and power of substitution to act in the name, place and stead of such Company Stockholders. All such actions shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ be facts ascertainable outside of the Representative Agreements and shall be binding on the Company Equityholders as a matter of contract Law. Without limiting the representative generality of the foregoing, the Stockholders’ Representative has full power and authority, on behalf of each Company Equityholder and his, her or its successors and assigns, to:
(i) interpret the terms and provisions of the Representative Agreements and the documents to be executed and delivered by the Company Equityholders in connection herewith;
(ii) execute and deliver and receive deliveries of all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by any of the Representative Agreements;
(iii) receive any amounts due or to be paid to the Company Equityholders under any of the Representative Agreements;
(iv) allocate among the Company Equityholders and instruct the Paying Agent or the Escrow Agent to distribute and pay to the Company Equityholders any amount to be paid to the Company Equityholders or to be paid to the Stockholders’ Representative on behalf of the Company Indemnitors Equityholders hereunder, and delivery of wire instructions to Parent, the Paying Agent or the Escrow Agent in connection with the foregoing;
(v) authorize delivery to Parent of the Escrow Fund, the PPP Escrow Fund, or any portion thereof, pursuant to the terms hereof;
(vi) negotiate and settle any dispute related to any post-Closing purchase price adjustments as contemplated by Section 1.4 and Section 1.5, including (A) prepare and deliver a Notice of Disagreement or Earnout Statement Dispute Notice, if deemed appropriate in the Stockholders’ Representative’s sole discretion, (B) make or authorize any payment to Parent on behalf of the Company Equityholders in connection therewith, and (C) reduce or withhold any amounts otherwise payable to the Company Equityholders;
(vii) act on behalf of the Company Equityholders in all matters relating to ARTICLE VI of this Agreement, including agreeing to, negotiating, entering into settlements and compromises of, and assuming the defense of, indemnification claims and initiating claims and complying with Orders with respect to such indemnification claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the purposes accomplishment of the foregoing;
(viii) take any and all actions that may be necessary or desirable, as determined by the Stockholders’ Representative in its sole discretion, in connection with the amendment of any Representative Agreement in accordance with its terms;
(ix) give and receive notices and communications;
(x) receive service of process in connection with any indemnification claims under this Agreement; and
(xi) take any and all other actions and do any and all other things necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of any or all Company Equityholders in connection with any Representative Agreement, the Stockholders’ Representative Engagement Agreement and the transactions contemplated thereby. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to act on behalf of the Company Equityholders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative in any other ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Stockholders’ Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Equityholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Company Equityholder of the whole or any fraction of his, her or its interest in the Escrow Fund. All actions taken by the Stockholders’ Representative under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement shall be binding upon each Company Equityholder and such Company Equityholder’s successors as if expressly confirmed and ratified in writing by such Company Equityholder, and all defenses which may be available to any Company Equityholder to contest, negate or disaffirm the action of the Stockholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement are waived.
(b) Parent shall be entitled to deal exclusively with the Stockholders’ Representative on behalf of any Company Equityholder with respect to all matters relating to the Representative Agreements and the transactions contemplated thereunder. Parent, and any other Person, may conclusively and absolutely rely, without inquiry and without further evidence of any kind whatsoever, upon any consent, approval or action of the Stockholders’ Representative as the consent, approval or action, as the case may be, of each Company Equityholder individually and all Company Equityholders as a group in all matters referred to herein, and each confirms all that the Stockholders’ Representative shall do or cause to be done by virtue of its appointment as the Stockholders’ Representative. The Stockholders’ Representative shall be entitled to: (i) rely upon the Disbursement Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Equityholder or other party.
(c) Certain Company Equityholders have entered into an engagement agreement (the “Stockholders’ RepresentativeRepresentative Engagement Agreement”).
(b) In the event with the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, provide direction to the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of in connection with its services under this Agreement, the Escrow Agreement and the documents delivered pursuant hereto.
Stockholders’ Representative Engagement Agreement (c) All decisions such Company Equityholder, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”), shall be liable to any Company Equityholder for any action or failure to act in connection with the acceptance or administration of the Stockholders’ Representative’s responsibilities hereunder, under the Escrow Agreement or under the Stockholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. Each Company Equityholder hereby consents and agrees to all actions or inactions taken or omitted to be taken by the Stockholders’ Representative pursuant to under this Agreement, the Escrow Agreement or the Escrow Stockholders’ Representative Engagement Agreement and hereby agrees to indemnify, defend and hold harmless the Stockholders’ Representative Group from and against all damages, Losses, Liabilities, charges, penalties, costs, claims, fees, judgments and expenses (including court costs and legal fees and expenses, costs of other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Stockholders’ Representative Expenses”) incurred in any Proceeding between any such Person or Persons and the Company Equityholders (or any of them) or between any such Person or Persons and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions of the Stockholders’ Representative under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement (except for actions or inactions resulting from the willful malfeasance or gross negligence of the Stockholders’ Representative). The Stockholders’ Representative shall have the right to retain legal counsel and other advisors and to incur such fees as the Stockholders’ Representative deems reasonable and necessary in the exercise of its responsibilities hereunder and to seek payment or reimbursement from the Company Stockholders for such fees and expenses, including any agreement between solely with respect to the internal relationship among the Stockholders’ Representative and Parent relating the Company Equityholders setting off such fees and expenses against amounts otherwise payable to the defense or settlement of any claims for which Parent or Company Equityholders at the Surviving time such amounts are distributed. The Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and Equityholders acknowledge that the Stockholders’ RepresentativeRepresentative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be liable for required to take any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of action unless the Stockholders’ Representative and arising out of has been provided with funds, security or indemnities which, in connection with its determination, are sufficient to protect the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall against the costs, expenses and liabilities which may be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken performing such actions.
(d) The Stockholders’ Representative may resign upon 90 days prior written notice thereof (the “Resignation Notice”) to Parent and each Company Stockholder; provided that a successor Stockholders’ Representative shall have been duly appointed pursuant to this Section 1.7(d) prior to the retiring Stockholders’ Representative’s resignation. Upon receipt of the Resignation Notice, a majority of Company Stockholders (based on their respective Pro Rata Share) shall appoint a successor Stockholders’ Representative. If no successor Stockholders’ Representative shall have been appointed by the Company Stockholders and shall have accepted such appointment, within 60 days after delivery of the Resignation Notice, then the Stockholders’ Representative pursuant wishing to the terms resign shall, on behalf of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this AgreementStockholders, the Company Indemnitors appoint a successor Stockholders’ Representative, which shall be deemed to have agreed, in addition to any Company Equityholder. Upon the foregoing, that:
(i) acceptance of its appointment as the Stockholders’ Representative is hereby appointed hereunder by a successor Stockholders’ Representative, such successor Stockholders’ Representative shall succeed to and constituted become vested, effective no earlier than 90 days after delivery of the true and lawful attorney-in-fact of each Company IndemnitorResignation Notice, with full power in hisall the rights and duties of the retiring Stockholders’ Representative, her and the retiring Stockholders’ Representative shall be discharged from its duties and obligations hereunder. After the retiring Stockholders’ Representative’s resignation hereunder as the Stockholders’ Representative, the provisions of this Agreement shall inure to its benefit as to any actions taken or its name omitted to be taken by it while it was the Stockholders’ Representative. The immunities and on his, her rights to indemnification shall survive the resignation or its behalf to act according to removal of the terms Stockholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
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Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following At the Closing, including without further act of any Stockholder or holder of In-the-Money Options, the Stockholders’ Representative shall be appointed as agent and attorney-in-fact for each such holder, to give and receive notices and communications, to authorize delivery to Buyer or the Surviving Corporation of cash from the Escrow Account in satisfaction of indemnification claims, to object to such deliveries, to retain and appoint advisors and to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing and in the defense or settlement of any claims claim against the Escrow Account for which Parent Indemnitees indemnity under Article 10. Such agency may be entitled to indemnification pursuant to Section 9, changed by the adoption holders of this Agreement, a majority in interest in the Company Indemnitors shall be deemed Escrow Account from time to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement time upon not less than 10 days’ prior written notice to Buyer and the Escrow Agreement (Agent; provided, however, that the “Stockholders’ Representative”)Representative may not be removed unless holders of a majority in interest in the Escrow Account agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder’s Representative may be filled by approval of the holders of a majority in interest in the Escrow Account. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each Stockholder and holder of In-the-Money Options.
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the The Stockholders’ Representative shall not be liable for for, or to any Person in respect of, any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, faith and any act done or omitted to be done pursuant to in the advice exercise of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharereasonable judgment.
(ec) By their adoption of this AgreementA decision, the Company Indemnitors shall be deemed to have agreedact, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her consent or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions instruction of the Stockholders’ Representative shall constitute a decision, act, consent or instruction of all Stockholders and holders of In-the-Money Options with respect to the Escrow Account and shall be final, binding and conclusive and binding upon all each of the Company Indemnitorssuch holder, and no Company Indemnitor shall have the Escrow Agent and Buyer may rely upon any cause of action against the Stockholders’ Representative for any action takensuch decision, decision made act, consent or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as being the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severabledecision, are irrevocable and coupled with an interestact, and shall be enforceable notwithstanding any rights consent or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns instruction of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseevery such holder.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By virtue of the approval of this Agreement and/or execution of a Securityholder Acknowledgment Agreement and without any further action of any of the Sellers or the Company, each of the Sellers, from and after the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement irrevocably constitutes and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event appoints the Stockholders’ Representative diesto be his, becomes unable her or its true and lawful exclusive agent and attorney-in-fact with full power of substitution to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest act as exclusive agent and representative for and on behalf of the Escrow Fund at such time shall be authorized Sellers with respect to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of any matter arising under or in connection with this Agreement and or the documents delivered pursuant hereto.
(c) All decisions and actions by Escrow Agreement. The appointment of the Stockholders’ Representative pursuant as each Seller’s attorney-in-fact revokes any power of attorney heretofore granted that authorized any other person or persons to act as agent and to represent such Seller with regard to this Agreement or the Escrow Agreement. The powers, including any agreement between immunities and rights to indemnification granted to the Stockholders’ Representative Group hereunder: (i) are coupled with an interest and Parent relating to irrevocable and survive the defense death, incompetence, bankruptcy or settlement liquidation of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Seller and shall be binding upon all on any successor thereto, and (ii) shall survive the delivery of an assignment by any Seller of the Company Indemnitorswhole or any fraction of his, and no Company Indemnitors shall have her or its interest in the right to objectEscrow Amount. Without limiting the generality of the foregoing, dissent, protest or otherwise contest any such decision or action.
(d) As between each of the Company Indemnitors and Sellers has authorized the Stockholders’ Representative, from and after the Closing, (A) to act on its behalf in connection with (i) executing and delivering, on behalf of the Sellers, any and all documents or certificates to be executed by the Sellers in connection with this Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby, and (ii) the Escrow Agreement upon the terms and conditions set forth therein, and (B) to do or refrain from doing any further act or deed on behalf of the Sellers which the Stockholders’ Representative shall not be liable for any act done deems necessary or omitted hereunder or under appropriate in its sole discretion relating to the subject matter of this Agreement and the Escrow Agreement as Stockholders’ Representative while acting in good faithAgreement. In connection with the foregoing, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to retain counsel and to incur such fees, costs and expenses as the Stockholders’ Representative deems to be indemnified necessary or appropriate. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement and held harmless in the Stockholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative in any ancillary agreement, schedule, exhibit or the Schedules. All actions taken by the Company Indemnitors Stockholders’ Representative under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement shall be binding upon each Seller and such Seller’s successors as if expressly confirmed and ratified in writing by such Seller, and all defenses which may be available to any Seller to contest, negate or disaffirm the action of the Stockholders’ Representative taken in good faith under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement are waived. The Stockholders’ Representative may resign at any time, and may be removed or replaced by the Advisory Group. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of the Escrow Agreement.
(b) The Stockholders’ Representative Reserve Amount shall be held by the Stockholders’ Representative in a segregated client account and shall be used (i) for the purposes of paying directly or reimbursing the Stockholders’ Representative for all Stockholders’ Representative Expenses (as defined below) incurred pursuant to this Agreement, the Escrow Agreement or any Stockholders’ Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Stockholders’ Representative is not providing any investment supervision, recommendations or advice and shall have no responsibility or liability for any loss of principal of the Stockholders’ Representative Reserve Amount 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 Stockholders’ Representative Reserve Amount and has no tax reporting or income distribution obligations. The Sellers will not receive any interest on the Stockholders’ Representative Reserve Amount and assign to the Stockholders’ Representative any such interest. If the Stockholders’ Representative determines in good faith, at any time and from time to time, that the amount available from the Stockholders’ Representative Reserve Account is insufficient to cover current (or reasonably expected future) fees, costs and expenses of the Stockholders’ Representative hereunder, the Stockholders’ Representative may withhold from any Contingent Merger Consideration or other amounts otherwise payable to the Sellers such amounts as the Stockholders’ Representative deems to be necessary or appropriate to cover such current (or reasonably expected future) fees, costs and expenses. Such amounts, in lieu of being distributed to the Sellers in accordance with Section 2.13, shall be deposited by the Stockholders’ Representative in the Stockholders’ Representative Reserve Account. Once no longer needed for such purposes (as determined by the Stockholders’ Representative in good faith), the balance of the Stockholders’ Representative Reserve Account shall be distributed by the Payment Agent to the Sellers in accordance with Section 2.13. Except as specifically set forth in the Stockholders’ Representative Engagement Agreement with respect to the Company, in no event shall Parent, Merger Sub I, Merger Sub II, the Ultimate Surviving Corporation or any of their respective Affiliates be responsible for any fees or expenses of the Stockholders’ Representative.
(c) The Stockholders’ Representative hereby (i) confirms its acceptance and appointment as the Stockholders’ Representative and authorization to act as attorney-in-fact and exclusive agent on behalf of each Seller in accordance with the terms of this Agreement and the Escrow Agreement, and (ii) agrees to perform its obligations hereunder and thereunder and otherwise comply with this Agreement and the Escrow Agreement.
(d) Parent and any other person may conclusively and absolutely rely, without inquiry, upon any action or decision of the Stockholders’ Representative in all matters referred to herein. From and after the Closing, Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters arising under or in connection with this Agreement or the Escrow Agreement. Any action taken or not taken or decisions, communications or writings made, given or executed by the Stockholders’ Representative with respect to all such matters, for or on behalf of any Seller, shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller. Any notice or communication delivered by Parent to the Stockholders’ Representative after the Closing shall be deemed to have been delivered to all Sellers. From and after the Closing, Parent shall be entitled to disregard any decisions, communications or writings made, given or executed by any Seller in connection with any matter arising under or in connection with this Agreement or the Escrow Agreement, unless the same is made, given or executed by the Stockholders’ Representative.
(e) The Stockholders’ Representative shall have no liability to Parent for any default under this Agreement by any Seller. Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”) will be liable to the Sellers in its capacity as the Stockholders’ Representative for any error of judgment, or any act done or step taken or omitted by it in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with this Agreement or the Escrow Agreement, except for its own bad faith or willful misconduct. The Sellers shall indemnify, defend and hold harmless the Stockholders’ Representative Group from and against any lossand all losses, liability claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or expense amounts paid in settlement (collectively, the “Stockholders’ Representative Expenses”) incurred without bad faith gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder hereunder, under the Escrow Agreement or under the Stockholders’ Representative Engagement Agreement. Such Stockholders’ Representative Expenses may be recovered first, from the Stockholders’ Representative Reserve Amount, second, from any distribution of the Escrow AgreementAmount, Contingent Merger Consideration or other amounts otherwise distributable to the Sellers at the time of distribution, and third, directly from the Sellers. The Stockholders’ Representative shall be entitled to recover may seek the advice of legal counsel in the event of any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant dispute or question as to the terms construction of any of the provisions of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her duties hereunder or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e)thereunder, and it will incur no party shall have any cause of action against Parent for any action taken by Parent liability in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his its capacity as the Stockholders’ Representative) Representative to the Sellers and will be fully protected with respect to any action taken, omitted or suffered by it in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have good faith in connection accordance with the transactions contemplated by this Agreement; and
(vi) the provisions opinion of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholdersuch counsel. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except Sellers acknowledge that the Stockholders’ Representative shall not be relieved required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any liability imposed by Legal Requirements for gross negligence of its powers, rights, duties or willful misconduct. The privileges or pursuant to this Agreement, the Escrow Agreement, the Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment Engagement Agreement or distribution of payments made by it in good faiththe transactions contemplated hereby or thereby. Furthermore, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated required to take any actions and shall be entitled to take such actions as action unless the Stockholders’ Representative deems appropriate has been provided with funds, security or indemnities which, in its sole discretion. Each Company Stockholder further agrees determination, are sufficient to indemnify and hold protect the Stockholders’ Representative harmless from against the costs, expenses and against any loss, liability or expense arising in connection with any act or omission as liabilities which may be incurred by the Stockholders’ RepresentativeRepresentative in performing such actions.
(f) The Stockholders’ Representative shall be entitled to: (i) rely upon the Allocation Schedule, except for (ii) rely upon any liability imposed signature believed by Legal Requirements for gross negligence it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Seller or willful misconductother party.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Stockholders’ Representative. (a) In order At the Closing and without further act of the Company or any Equity Holder the Stockholders’ Representative shall be appointed as agent and attorney in fact for each Equity Holder to efficiently administer certain matters give and receive notices and communications, execute any and all instruments or other documents on behalf of such Equity Holder, and to do any and all other acts or things on behalf of such Equity Holder, which the Stockholders’ Representative may deem necessary or advisable, or which may be required pursuant to this Agreement, the Escrow Agreement or otherwise, in connection with the consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including including, but not limited to, the defense exercise of the power to: (i) negotiate and execute the Escrow Agreement on behalf of each Equity Holder, (ii) act for each Equity Holder with respect to any Merger Consideration Adjustment, (iii) give and receive notices and communications to or settlement of any claims for which Parent Indemnitees may be entitled from Buyer and/or the Escrow Agent relating to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such notice or communication shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as given or received by such Equity Holders individually), and (iv) take all actions necessary or appropriate in the representative judgment of the Company Indemnitors Stockholders’ Representative for the purposes accomplishment of the foregoing. The Stockholders’ Representative shall have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement and the Escrow Agreement (and all rights or obligations arising under this Agreement and the “Escrow Agreement. The Equity Holders shall be bound by all actions taken and documents executed by the Stockholders’ Representative in connection with this Agreement and the Escrow Agreement, and Buyer shall be entitled to rely on any action or decision of the Stockholders’ Representative”). The Stockholders’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each Equity Holder. A decision, act, consent or instruction of the Stockholders’ Representative (acting in its capacity as the Stockholders’ Representative) shall constitute a decision of all the Equity Holders and shall be final, conclusive and binding upon each such Equity Holder, and Buyer may rely upon any such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each such Equity Holder.
(b) In the event the The Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes not have by reason of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement otherwise a fiduciary relationship in respect of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Equity Holder. The Stockholders’ Representative shall not be liable to any Equity Holder for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done action taken or omitted to be done pursuant to the advice of counsel taken by it or any agent employed by it under this Agreement. Each Equity Holder shall be conclusive evidence of severally (based on each such good faith. The Stockholders’ Representative shall be entitled to be indemnified Equity Holder’s Pro Rata Percentage), and held not jointly, indemnify and hold harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative from and against any loss incurred and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharehereunder.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters By approving this Agreement and the consummation of the transactions contemplated hereby following hereby, and/or participating in the ClosingMerger and receiving the benefits thereof, including the defense or settlement right to receive the consideration payable in connection with the Merger and without any further action of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors or any of the Stockholders, SAFE Holders or Optionholders, each Stockholder, SAFE Holder and Optionholder shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ irrevocably approved the appointment and designation of, and hereby appoints and designates, Fortis Advisors LLC, a Delaware limited liability company, as the representative of the Company Indemnitors for the purposes of this Agreement its true and the Escrow Agreement lawful attorney-in-fact and exclusive agent (the “Stockholders’ Representative”).
(b) In with full power of substitution to do or refrain from doing any and all things, acts or deeds and execute any and all documents which may be necessary, convenient or appropriate in its sole discretion to facilitate the event consummation of the transactions contemplated hereby, by the Paying Agent Agreement, the Escrow Agreement and the Stockholders’ Representative diesEngagement Agreement (as defined below) and the exercise of all rights and the performance of all obligations hereunder and thereunder, becomes unable including:: (i) facilitating payments under or pursuant to perform his this Agreement and making disbursements thereof to the Stockholders, SAFE Holders and Optionholders, as contemplated by this Agreement; (ii) receiving and forwarding of notices and communications pursuant to this Agreement and accepting service of process; (iii) giving or her responsibilities hereunder or resigns from such positionagreeing to, on behalf of all the Company Indemnitors who hold a majority Stockholders SAFE Holders and Optionholders, any and all consents, waivers and amendments deemed by the Stockholders’ Representative, in interest of the Escrow Fund at such time shall be authorized to its reasonable and shall select another representative to fill such vacancy and such substituted representative shall be deemed good faith discretion, to be a Stockholders’ Representative for all purposes of necessary or appropriate under this Agreement and the execution or delivery of any documents delivered pursuant hereto.
that may be necessary or appropriate in connection therewith; and (civ) All decisions with respect to any indemnification claims and actions all other matters arising under this Agreement, (A) disputing or refraining from disputing, on behalf of each Stockholder, SAFE Holder and Optionholder relative to any amounts to be received by the Stockholders and Optionholders under this Agreement or any agreements contemplated hereby, or any claim made by Parent under this Agreement, (B) negotiating and compromising, on behalf of each Stockholder, SAFE Holder and Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) executing, on behalf of each Stockholder, SAFE Holder and Optionholder, any settlement agreement, release or other document with respect to such dispute or remedy, except in each case with respect to a dispute between any Stockholder, SAFE Holder or Optionholder on the one hand and the Stockholders’ Representative pursuant on the other hand, provided that, in each case, the Stockholders’ Representative shall not take any action adverse to this Agreement any Stockholder, SAFE Holder or Optionholder unless such action is also taken proportionately with respect to the others. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to act on behalf of the Stockholders, SAFE Holders or Optionholders except as expressly provided herein, in the Escrow Agreement, including any agreement between the Paying Agent Agreement and in the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsEngagement Agreement, and for purposes of clarity, there are no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and obligations of the Stockholders’ RepresentativeRepresentative in any ancillary agreement, schedule, exhibit or the Disclosure Schedules. The Stockholders, SAFE Holders and Optionholders acknowledge the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Stockholders’ Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be liable for required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the Stockholders’ Representative in performing such actions.
(b) Each Stockholder, SAFE Holder and Optionholder hereby agrees that: (i) in all matters in which action by the Stockholders’ Representative is required or permitted, the Stockholders’ Representative is authorized to act done on behalf of such Stockholder, SAFE Holder and Optionholder, notwithstanding any dispute or omitted hereunder disagreement among the Stockholders, SAFE Holders and Optionholders, and any Indemnified Party shall be entitled to rely on any and all action taken by the Stockholders’ Representative under this Agreement without any liability to, or obligation to inquire of, any Stockholder, SAFE Holder or Optionholder, notwithstanding any knowledge on the part of any Indemnified Party of any such dispute or disagreement; (ii) all decisions, actions, consents and instructions by the Stockholders’ Representative under this Agreement, the Paying Agent Agreement, the Escrow Agreement as or the Stockholders’ Representative while acting Engagement Agreement shall be binding upon all of the Stockholders SAFE Holders and Optionholders and such Stockholders’, SAFE Holders’ and Optionholders’ successors and assigns as if expressly confirmed and ratified in good faithwriting by such Stockholder, SAFE Holder and Optionholder, and all defenses which may be available to any act done Stockholder, SAFE Holder or omitted Optionholder to object to, dissent from, negate, disaffirm, protest or otherwise contest any such decision, action, consent or instruction are waived; and (iii) notice to the Stockholders’ Representative, delivered in the manner provided in Section 10.1, shall be deemed to be done pursuant notice to each Stockholder, SAFE Holder and Optionholder for the purposes of this Agreement.
(c) The powers, immunities and rights to indemnification granted to the advice of counsel Stockholders’ Representative Group hereunder: (i) are coupled with an interest and shall be conclusive evidence irrevocable and survive the death, incompetence, bankruptcy or liquidation of such good faithany Stockholder, SAFE Holder or Optionholder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Stockholder, SAFE Holder or Optionholder of the whole or any fraction of his her or its interest in the Escrow Fund. The Stockholders’ Representative may resign at any time and may be removed or replaced by the majority vote of the Advisory Group. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Representative or any member of the Advisory Group and the Closing and/or any termination of this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Stockholders’ Representative Engagement Agreement.
(d) Certain Company Equityholders have entered into an engagement agreement (the “Stockholders’ Representative Engagement Agreement”) with the Stockholders’ Representative to provide direction to the Stockholders’ Representative in connection with its services under this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Stockholders’ Representative Engagement Agreement (such Company Equityholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents, employees nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”), shall be entitled liable to be indemnified any Stockholder, SAFE Holder or Optionholder for any action or failure to act in connection with the acceptance or administration of the Stockholders’ Representative’s responsibilities hereunder, under the Escrow Agreement, the Paying Agent Agreement or under the Stockholders’ Representative Engagement Agreement, unless and held only to the extent such action or failure to act constitutes gross negligence or willful misconduct. The Stockholders, SAFE Holders and Optionholders shall indemnify, defend and hold harmless by the Company Indemnitors against Stockholders’ Representative Group from any lossand all losses, liability claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or expense amounts paid in settlement (collectively, the “Stockholders’ Representative Expenses”) incurred without bad faith gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under this Agreement, the Escrow Agreement. The , the Paying Agent Agreement or the Stockholders’ Representative Engagement Agreement. Such Stockholders’ Representative Expenses may be recovered from the Expense Fund, from any distribution of the Escrow Fund otherwise distributable to the Stockholders, SAFE Holders or Optionholders at the time of distribution and directly from the Stockholders, SAFE Holders and Optionholders.
(e) Upon the Closing, Parent shall wire to the Stockholders’ Representative the Expense Fund. The Expense Fund shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred held by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel a segregated client account and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
used (i) for the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact purposes of each Company Indemnitor, with full power in his, her paying directly or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against reimbursing the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under Expenses incurred pursuant to this Agreement or Agreement, the Escrow Agreement, except for fraud the Paying Agent Agreement or willful breach of this Agreement on the part of Representative Engagement Agreement, or (ii) as otherwise determined by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company StockholderAdvisory Group. The Stockholders’ Representative is not providing any investment supervision, recommendations or advice and shall not be liable to any Company Stockholder have no responsibility or liability for any action taken or omitted by it hereunder or under any loss of principal of the Expense Fund other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved than as a result of any liability imposed by Legal Requirements for its gross negligence or willful misconduct. The Stockholders’ Representative shall is not be liable 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 in connection therewith. The Stockholders, the SAFE Holders and the Optionholders will not receive interest on the Expense Fund and assign to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if the Stockholders’ Representative any such apportionment or distribution is subsequently determined interest. Subject to have been made in errorAdvisory Group approval, the sole recourse of Stockholders’ Representative may contribute funds to the Expense Fund from any Company Stockholder consideration otherwise distributable to which payment was duethe Stockholders, but not madeSAFE Holders or Option Holders. As soon as reasonably determined by the Stockholders’ Representative that the Expense Fund is no longer required to be withheld, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated distribute the remaining Expense Fund (if any) to take any actions the Escrow Agent, Paying Agent and/ or Parent, as applicable, for further distribution to the Stockholders, SAFE Holders and Optionholders.
(f) The Stockholders’ Representative shall be entitled to: (i) rely upon the Certified Closing Report and the information provided on Schedule 2.10(a)(iii), (ii) any signature believed by it to take be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Stockholder, SAFE Holder, Optionholder or other party.
(g) Each Stockholder and Optionholder hereby acknowledges and agrees that no Indemnified Party shall have any Liability to any Stockholder or Optionholder with respect to, and Stockholders and Optionholders jointly and severally shall indemnify all Indemnified Parties against, and agree to hold the Indemnified Parties harmless from, any and all Losses incurred by such actions as Indemnified Parties arising out of any breach of this Section 10.14 by the Stockholders’ Representative deems appropriate in its sole discretion. Each Company or by any Stockholder further agrees to indemnify and hold or Optionholder, or the designation, appointment or actions of the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as pursuant to the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductprovisions hereof.
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Stockholders’ Representative. (a) In order Pursuant to efficiently administer certain matters contemplated hereby following the Closing, including Stockholders Approval dated on or about the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreementdate hereof, the Company Indemnitors shall be deemed to Letters of Transmittal and the Warrant Termination Agreements, as applicable, the Stockholders and the Warrantholders have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ constituted, appointed and empowered effective from and after the date of such consent, Olympus Growth Fund IV, L.P. as the representative Stockholders’ Representative, for the benefit of the Company Indemnitors for Stockholders and the purposes Warrantholders and the exclusive agent and attorney-in-fact to act on behalf of each Stockholder and Warrantholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the Escrow Agreement (consummation of the “transactions contemplated hereby as the Stockholders’ Representative”), in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and protect the rights and interests of the Stockholders and the Warrantholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, as and to the extent applicable to them, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Stockholders and the Warrantholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action or investigation; (B) investigate, defend, contest or litigate any Action or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Stockholders or Warrantholders, and receive process on behalf of any or all Stockholders and Warrantholders in any such Action or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action or investigation; (C) file any proofs of debt, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to waive or refrain from enforcing any right of the Stockholders or the Warrantholders arising out of or under or in any manner relating to this Agreement; provided, however, that such waiver is in writing signed by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Stockholders and the Warrantholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and direct the disbursement of (if applicable under this Agreement) the Purchase Price Adjustment Holdback Amount, the Expense Holdback Amount, and the Indemnity Holdback Amount in accordance with the terms of this Agreement.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Stockholders and the Warrantholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the event powers conferred upon the Stockholders’ Representative dieshereunder, becomes unable to perform his or her responsibilities hereunder or resigns from such position, (i) the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative shall incur no responsibility whatsoever to any Stockholders or Warrantholders by reason of any act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Stockholders or Warrantholders. Each Stockholder and Warrantholder shall indemnify, severally and not jointly, based on such Stockholder’s and Warrantholder’s pro rata share of Merger Consideration received by such Stockholder and Warrantholder, as applicable, the Stockholders’ Representative against all purposes losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever, arising out of or relating to any acts or omissions (including any breach) of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. The Stockholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Stockholders or the Warrantholders any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Agreement and the documents delivered pursuant heretoSection 8.15(b).
(c) All decisions of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense all of which actions or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, omissions shall be legally binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or actionWarrantholders.
(de) As between The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Company Indemnitors death, incompetency, bankruptcy or liquidation of any Stockholder or Warrantholder and (ii) shall survive the Stockholders’ Representative, consummation of the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithMerger, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions action taken by the Stockholders’ Representative pursuant to the terms of authority granted in this Agreement shall be effective and binding on each Stockholder and Warrantholder notwithstanding any contrary action of or direction from such Stockholder or Warrantholder, except for actions or omissions of the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata ShareStockholders’ Representative constituting willful misconduct.
(ef) By their adoption Each of this Agreementthe Company, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related a Party to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in such capacity solely to perform certain administrative functions in connection with the consummation of the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executorshereby. Accordingly, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers Company, Merger Sub and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder Parent acknowledges and agrees that the Stockholders’ Representative shall have no liability to, and shall not be obligated to take liable for any actions and shall be entitled to take such actions as losses of, any of the Company, Merger Sub or Parent in connection with any obligations of the Stockholders’ Representative deems appropriate under this Agreement or otherwise in its sole discretion. Each Company Stockholder further agrees respect of this Agreement or the transactions contemplated hereby, except to indemnify and hold the extent such losses shall be proven to be the direct result of willful misconduct by the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductperformance of its obligations hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters the transactions contemplated hereby following occurring after the ClosingEffective Time, including without limitation the defense or and/or settlement of any claims for which Parent Indemnitees the Company Stockholders may be entitled required to indemnification indemnify Acquiror and/or the Surviving Corporation pursuant to Section 98 hereof, by each Company Stockholder shall upon approval of the Merger and the adoption of this Agreement be deemed, whether or not he, she or it voted in favor of the Merger and this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇designate Robert B. Abbott a▇ ▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement ▇▇▇▇tative (the “"Stockholders’ ' Representative”").
(b) The Company Stockholders by the approval of the Merger and the adoption of this Agreement authorize the Stockholders' Representative, after the Effective Time, (i) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify Acquiror and/or the Surviving Corporation pursuant to Section 8 hereof, (ii) to give and receive all notices required to be given under this Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder hereunder, is removed by the Company Stockholders who beneficially own a majority of the Escrow Shares, or resigns from such position, the Company Indemnitors Stockholders who hold beneficially own a majority in interest of the Escrow Fund at such time shall be Shares are authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant hereto. Acquiror shall be entitled to rely on the decision of the Stockholders' Representative named herein (or any successor as hereafter provided) until it is notified in writing that a replacement Stockholders' Representative has been elected.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement' Representative, including without limitation any agreement between the Stockholders’ ' Representative and Parent Acquiror relating to the defense or settlement of any claims for which Parent or the Company Stockholders may be required to indemnify Acquiror and/or the Surviving Company may be entitled to indemnification Corporation pursuant to Section 98 hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(de) As between the Company Indemnitors and the The Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable have any liability to any of the parties hereto or the Company Stockholders for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ ' Representative while acting in good faithfaith and in the exercise of reasonable judgment, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholders’ ' Representative shall be entitled to be indemnified and held hold it harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ ' Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under hereunder. The Stockholders' Representative shall be reimbursed for all costs and expenses incurred in the performance of its duties by the Company Stockholders severally and out of the Escrow Shares and in accordance with the procedures described in the Escrow Agreement. The Stockholders’ Representative ; PROVIDED, HOWEVER, in no event shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms aggregate amount reimbursed out of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata ShareShares exceed $100,000.00.
(ef) By their Upon approval of the Merger and the adoption of this Agreement, the each Company Indemnitors Stockholder shall be deemed deemed, whether or not he, she or it voted in favor of this Agreement, to have agreedagree, in addition to the foregoing, that:
(i) Acquiror and/or the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Surviving Corporation shall be entitled to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the settlement of any claims for indemnification by Acquiror and/or the Surviving Corporation pursuant to Section 8 hereof, or made any other actions required or permitted to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party hereunder shall have any cause of action against Parent Acquiror and/or the Surviving Corporation for any action taken by Parent in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative as authorized herein shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part bad faith of the Stockholders’ Representative' Representative in connection with the matters described in this Section 1.8;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.8 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and;
(viiv) remedies available at law for any breach of the provisions of this Section 10.1 1.8 are inadequate; therefore, Acquiror and the Surviving Corporation and the Stockholders' Representative shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Acquiror and/or the Surviving Corporation or the Stockholders' Representative brings an action to enforce the provisions of this Section 1.8; and
(v) the grant of authority provided for in this Section 1.8 is coupled with an interest and shall be irrevocable and survive the death, incompetency, dissolution or bankruptcy of any Company Stockholder and shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Company Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By virtue of their approval of the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this AgreementMerger, the Company Indemnitors Stockholders shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event appointed the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest as representative of the Escrow Fund at such time shall be authorized Stockholders and as the attorney-in-fact and agent for and on behalf of each Stockholder with respect to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a claims for Losses under Article 10. The Stockholders’ Representative for will take any and all purposes of this Agreement actions and the documents delivered pursuant hereto.
(c) All make any decisions and actions required or permitted to be taken by the Stockholders’ Representative pursuant to under this Agreement or and the Escrow Stockholders’ Representative Agreement in compliance with the Stockholders’ Representative Agreement, including the exercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims for Losses; (b) arbitrate, resolve, settle or compromise any agreement between Contested Claim made pursuant to Article 10; and (c) take all actions necessary in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Stockholders’ Representative will have authority and power to act on behalf of each Stockholder with respect to the disposition, settlement or other handling of all claims for Losses under Article 10 and all rights or obligations arising under Article 10. In performing the functions specified in this Agreement, the Stockholders’ Representative will not be liable to any Stockholder in the absence of willful misconduct, to the extent permitted by applicable law, on the part of the Stockholders’ Representative. The Stockholders will severally, but not jointly, on a pro rata basis, indemnify the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held hold him harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith willful misconduct, to the extent permitted by applicable law, on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her his duties hereunder hereunder. If the Stockholders’ Representative shall die, become disabled or under otherwise be unable to fulfill his responsibilities as representative of the Stockholders, then the Stockholders shall, within ten days after such death or disability, appoint a successor representative and, promptly thereafter, shall notify Parent and the Escrow AgreementAgent of such successor. The Stockholders’ Representative shall be entitled have the right to recover from the Escrow Fund, prior to any out-of-pocket distribution to the Stockholders, an amount equal to any reasonable fees, costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel acceptance and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions administration of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights duties hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following After the Closing, including approval by a majority of the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption Stockholders of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”, shall have exclusive power and authority on behalf of the Stockholders and, prior to the Effective Time on behalf of the Company, with respect to any action taken pursuant to this Agreement (including with respect to waivers and adjustments to, receipt of, and distribution of, the aggregate Applicable Per Share Merger Consideration).
(b) In the event the The Stockholders’ Representative diesshall not (i) be liable to the holders of Company Capital Stock for any actions taken or omitted to be taken by it or any agent employed by it under or in connection with this Agreement or the transactions contemplated hereby, becomes unable or (ii) owe any fiduciary duty or have any fiduciary responsibility to perform his any of the holders of Company Capital Stock or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold as a majority in interest result of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by taken as the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between except for such actions taken or omitted to be taken resulting from the Stockholders’ Representative’s gross negligence, bad faith or willful misconduct. Provided that all payments and distributions made by or at the direction of the Stockholders’ Representative and Parent relating hereunder to the defense or settlement holders of any claims for which Parent or Company Capital Stock are made based on the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all good faith determination of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any each such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representativeholder’s respective Applicable Portion, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any holder of Company Capital Stock if the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any apportionment with respect to such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment payment or distribution is subsequently determined to have been made in error, and the sole recourse of any holder of Company Stockholder Capital Stock to which whom such payment or distribution was due, but not made, shall be to recover from the other holders of Company Stockholders Capital Stock any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that entitled pursuant to this Agreement.
(c) If the Stockholders’ Representative shall not be obligated to take incurs any actions out-of-pocket expenses (including any reasonable fees and expenses of counsel) in its capacity as Stockholders’ Representative under this Agreement or in connection with any of the transactions contemplated hereby, such out-of-pocket expenses shall be entitled to take such actions as paid from, or reimbursed through deduction from any amounts received by the Stockholders’ Representative deems appropriate that would otherwise be distributable to holders of Company Capital Stock in its sole discretion. Each Company Stockholder further agrees accordance with their respective Applicable Portions.
(d) Buyer and the Surviving Corporation shall have the right to indemnify and hold rely upon all actions taken or omitted to be taken by the Stockholders’ Representative harmless from pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Stockholders.
(e) The grant of authority provided for herein (i) is coupled with an interest and against shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any lossStockholder and (ii) shall survive the consummation of the Merger, liability or expense arising in connection with and any act or omission as action taken by the Stockholders’ RepresentativeRepresentative pursuant to the authority granted in this Agreement shall be effective and absolutely binding on each Stockholder notwithstanding any contrary action of or direction from such Stockholder, except for any liability imposed by Legal Requirements for actions or omissions of the Stockholders’ Representative constituting gross negligence negligence, bad faith or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Selway Capital Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative Each of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event Stockholders hereby appoints the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority as its representative in interest respect of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of matters arising under this Agreement or the Transactions, and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant is and shall be authorized by each Company Stockholder to this Agreement act, or the Escrow Agreementrefrain from acting, including with respect to any agreement between the Stockholders’ Representative and Parent relating actions to the defense be taken by or settlement on behalf of any claims for which Parent Company Stockholder or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, including to enforce any rights granted to any Company Stockholder hereunder, in each case as the Stockholders’ Representative shall not be liable believes is necessary or appropriate under this Agreement and the Ancillary Agreements, for any act done or omitted hereunder or under and on behalf of the Escrow Agreement as Company Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel . The Company Stockholders shall be conclusive evidence of bound by all such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and Stockholder shall be enforceable notwithstanding permitted to take any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholdersuch actions. The Stockholders’ Representative shall not be liable to the Company Stockholders for any Company Stockholder error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Stockholders’ Representative of the Stockholders’ Representative’s duties or the exercise by the Stockholders’ Representative of the Stockholders’ Representative’s rights and remedies under this Agreement or any Transaction Agreement, except in the case of its bad faith or willful misconduct. No bond shall be required of the Stockholders’ Representative. The Stockholders’ 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 hereunder in accordance with the advice of such counsel, accountants or under experts. The Stockholders’ Representative shall not have any other document contemplated herebyduty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or in connection therewithconditions of this Agreement or any Ancillary Agreement. Without limiting the generality of the foregoing, except that the Stockholders’ Representative shall not have the full power and authority to interpret all the terms and provisions of this Agreement and the Ancillary Agreements, and to consent to any amendment hereof or thereof on behalf of all Company Stockholders and their respective successors. Parent shall be relieved entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Stockholders’ Representative relating to this Agreement or any Ancillary Agreement.
(b) The Company Stockholders will indemnify and hold harmless the Stockholders’ Representative from and against any and all costs or expenses (including reasonable legal fees and disbursements), judgments, fines, losses, damages or liabilities (“Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement and the Ancillary Agreements, in each case as such Loss is suffered or incurred; provided that in the event that any liability imposed such Loss is finally adjudicated to have been directly caused by Legal Requirements for gross negligence or the willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Stockholders the amount of such indemnified Loss to the extent attributable to such willful misconduct. The Stockholders’ Representative shall not be liable entitled to reimbursement by 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 Stockholders’ Representative in such capacity. In no event will the Stockholders’ 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 Stockholders’ Representative or the termination of this Agreement.
(c) The Parties acknowledge and agree that neither Parent, Merger Sub I, Merger Sub II, the Company, nor any other Affiliate of Parent (the “Parent Indemnified Parties”) shall have any liability of any kind or nature to any Company Stockholder for or any apportionment or distribution of payments made by it in good faithother Person relating to, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take will indemnify and hold harmless the Parent Indemnified Parties from and against any actions and shall be entitled to take such actions as all Losses arising out of, the allocation, payment or distribution of any amounts, including the Merger Consideration or any component thereof, by the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductunder this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Vesper Healthcare Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated a representative of ▇▇▇▇▇. ▇▇▇▇▇▇ Management 2000 (1999) Ltd. (who initially shall be ▇▇. ▇▇▇▇▇ Kiriati) as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company Corporation may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the The Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vif) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, representatives successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In The Stockholders hereby designate ▇▇▇▇ ▇. ▇'▇▇▇▇▇ as their representative (the "Stockholders' Representative") in order to administer efficiently administer certain matters (i) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby following the Closinghereby, including (ii) the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders may be entitled required to indemnification indemnify the Buyer or the Company pursuant to Section 9, by the adoption of 8 hereof and (iii) any amendment to this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 8 of this Agreement, (ii) to give and receive all notices required to be given under this Agreement on behalf of the Stockholders, (iii) to amend this Agreement on behalf of the Stockholders and (iv) to take any and all other action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, immediately prior to the Company Indemnitors who hold Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares as set forth on Schedule SH shall select another representative to fill such vacancy and such shall immediately provide written notice to the Buyer thereof. Such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement' Representative, including including, without limitation, any agreement between the Stockholders’ ' Representative and Parent the Buyer relating to the defense or settlement of any claims for which Parent or the Surviving Company Stockholders may be entitled required to indemnification indemnify the Buyer and/or the Company pursuant to Section 98 hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the settlement of any claims for indemnification by the Buyer or made the Company pursuant to Section 8 of this Agreement or any other actions required or permitted to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party Party hereunder shall have any cause of action against Parent the Buyer for any action taken by Parent the Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.05 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor 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 1.05 are inadequate; therefore, the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Section 1.05; and
(viv) the provisions of this Section 10.1 1.05 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after By his execution of this Agreement, ▇▇▇▇ ▇. ▇'▇▇▇▇▇ agrees to serve as Stockholders' Representative pursuant to the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under terms more fully set forth in this Agreement.
(g) The All fees and expenses incurred by the Stockholders’ ' Representative shall not have be paid by reason the Stockholders in proportion to their ownership of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions Shares as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductset forth on Schedule SH.
Appears in 1 contract
Stockholders’ Representative. (a) In order At the Effective Time, Warburg Pincus Private Equity VIII, L.P. shall be constituted and appointed as the Stockholders Representative. The Stockholders Representative shall be the exclusive agent for and on behalf of the current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants immediately prior to efficiently administer certain matters contemplated hereby following the Closing, including Effective Time to: (i) give and receive notices and communications to or from Mercury (on behalf of itself or any other Indemnified Person) and/or the defense or settlement of any claims for which Parent Indemnitees may be entitled Escrow Agent relating to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby; (ii) authorize deliveries to Mercury of cash from the Escrow Fund in satisfaction of claims asserted by Mercury (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (iii) object to such claims in accordance with Section 7.6; (iv) consent or agree to, negotiate, enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; and (v) take all actions necessary or appropriate in the judgment of the Stockholders Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Stockholders Representative shall be deemed the sole and exclusive means of asserting or addressing any of the above and no current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants immediately prior to the Effective Time shall have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Stockholders Representative. The Person serving as the representative Stockholders Representative may be replaced from time to time by the holders of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the shares or other property then on deposit in the Escrow Fund at such time upon not less than ten days’ prior written notice to Mercury. No bond shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes required of this Agreement the Stockholders Representative, and the documents delivered pursuant heretoStockholders Representative shall receive no compensation for his services. Notices or communications to or from the Stockholders Representative shall constitute notice to or from each of the holders of Systinet Capital Stock, Systinet Options and Systinet Warrants immediately prior to the Effective Time.
(cb) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ The Stockholders Representative shall not be liable to any holder of Systinet Capital Stock, Systinet Options or Systinet Warrants immediately prior to the Effective Time for any act done or omitted hereunder or under as the Escrow Agreement as Stockholders’ Stockholders Representative while acting in good faith, faith and any act done or omitted to be done pursuant to in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The Stockholders’ holders of Systinet Capital Stock, Systinet Options or Systinet Warrants immediately prior to the Effective Time shall severally indemnify the Stockholders Representative shall be entitled to be indemnified and held hold it harmless by the Company Indemnitors against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Stockholders Representative and arising out of or in connection with the acceptance or administration of his/her its duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharehereunder.
(ec) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ The Stockholders Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company Systinet and the reasonable assistance of the Systinet’s former officers and employees of the Surviving Company for purposes of performing his duties and exercising his its rights under this Agreement.
(g) The Stockholders’ hereunder, provided that the Stockholders Representative shall treat confidentially and not have by reason of this Agreement disclose any nonpublic information from or about Systinet to anyone (except on a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable need to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable know basis to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any individuals who agree to treat such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductinformation confidentially).
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including (i) the defense or settlement of any claims for which Parent any of the Veeco Indemnitees may be entitled to indemnification pursuant to Section 9Article VIII hereof and (ii) any other matter arising under or relating to the Escrow Agreement after the Closing, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ as is hereby appointed to represent the representative interests of the Company Indemnitors for Stockholders after the purposes of this Agreement and the Escrow Agreement Effective Date (the “Stockholders’ Representative”"STOCKHOLDERS' REPRESENTATIVE").
(b) The Stockholders' Representative shall be authorized to take all actions which he deems appropriate in connection with the matters described in Section 2.08(a), including, without limitation, to execute and deliver the Escrow Agreement on behalf of the Stockholders and to perform the transactions contemplated thereby.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, then the Company Indemnitors remaining Stockholders who hold held not less than a majority in interest of the Escrow Fund at outstanding Company Common Stock held by all such time remaining Stockholders as of the Effective Time, calculated on a fully-diluted basis, shall be authorized designate a replacement within 10 days of such death, inability to perform or resignation, and shall select another representative to fill notify all Stockholders in writing of such vacancy and replacement within 10 days from the designation of such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretoindividual.
(cd) All decisions and actions by the Stockholders’ ' Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) Each of the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Veeco Indemnitees shall be entitled to rely conclusively on the instructions and decisions given or made by of the Stockholders’ ' Representative as to any of the matters matter described in this Section 10.1(e2.08(a), and no party hereto shall have any cause of action against Parent any of the Veeco Indemnitees for any action taken by Parent any such Veeco Indemnitee in reliance upon any such the instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor ' Representative.
(ii) No Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Merger Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;fraud.
(iviii) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the The provisions of this Section 10.1(e) 2.08 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Merger Agreement; and.
(viiv) the The provisions of this Section 10.1 2.08 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitorof the Stockholders, and any references in this Merger Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance each of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this AgreementStockholders hereunder.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. 11.1 Stockholders’ Representative.
(a) In order Each of the Stockholders, by such Stockholder’s execution of this Agreement or a Joinder Agreement, hereby irrevocably appoints the Stockholders’ Representative as agent and attorney in fact for the Company and such Stockholder, and authorizes the Stockholders’ Representative (i) to efficiently administer certain matters take all action necessary to consummate the transactions contemplated hereby following by this Agreement and the ClosingEscrow Agreement, including or the defense or and/or settlement of any claims for which Parent Indemnitees such Stockholder may be entitled required to indemnification indemnify the Purchaser or any other Indemnified Party pursuant to Section 9ARTICLE X, by the adoption of (ii) to give and receive all notices required to be given under this Agreement, the Company Indemnitors shall be deemed Escrow Agreement or the Stockholder Related Agreements, (iii) to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as authorize delivery to the representative Purchaser of the Escrowed Closing Consideration or the Future Product Payments to the extent necessary for the Purchaser to exercise its rights under Section 1.7 or ARTICLE X, (iv) to make decisions on behalf of the Company Indemnitors for and such Stockholder and take any and all additional action as is contemplated to be taken by or on behalf of such Stockholder by the purposes terms of this Agreement or the Escrow Agreement, including, without limitation regarding (A) indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, (B) amendments to this Agreement, the Escrow Agreement or the Stockholder Related Agreements, and (C) the “Stockholders’ Representative”)Future Product Payments.
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow AgreementRepresentative, including without limitation (i) any agreement between the Stockholders’ Representative and Parent the Purchaser relating to the defense or settlement of any claims for which Parent the Stockholders may be required to indemnify the Purchaser pursuant to ARTICLE X, and (ii) any agreement between the Stockholders’ Representative and the Purchaser relating to the Escrow Agreement or the Surviving Company may be entitled determination of the Specified Indebtedness Amount under Section 1.7 or any other matter relating to indemnification pursuant to Section 9ARTICLE I or the Future Product Payments, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(dc) As between the Company Indemnitors and the Stockholders’ Representative, the The Stockholders’ Representative shall not be liable have any liability to any of the parties to this Agreement or to the Stockholders for any act done or omitted hereunder or under the Escrow pursuant to this Agreement as the Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholders’ Representative shall be entitled to be indemnified and held hold the Stockholders’ Representative harmless by the Company Indemnitors against any loss, liability or expense incurred without fraud or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her the Stockholders’ Representative’s duties hereunder or under the Escrow this Agreement. .
(d) The Stockholders’ Representative shall be entitled have full power and authority on behalf of each Stockholder to recover take any out-and all actions on behalf of-pocket costs , execute any and expenses reasonably incurred by all instruments on behalf of, and execute or waive any and all rights of, the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of Stockholders under this Agreement or Agreement, the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata ShareStockholder Related Agreements.
(e) By their adoption Each of the Stockholders, by such Stockholder’s execution of this Agreement or a Joinder Agreement, the Company Indemnitors shall be deemed to have agreedagrees, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Purchaser shall be entitled to rely conclusively on the instructions and decisions given or made by of the Stockholders’ Representative as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to ARTICLE X, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims, Notices of Claims, the matters described in Specified Indebtedness Amount, and the Future Product Payments, and (C) any other actions required or permitted to be taken by the Stockholders’ Representative under this Section 10.1(e)Agreement, the Escrow Agreement and any Stockholder Related Agreement, and no party Stockholder shall have any cause of action against Parent the Purchaser for any action taken by Parent the Purchaser in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon the Company and all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, Agreement except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) misconduct by the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with the matters related to described in this Agreement and the Company Ancillary Agreements;ARTICLE XI; and
(viii) the provisions of this Section 10.1(e) ARTICLE XI are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and, the Escrow Agreement and the Stockholder Related Agreements.
(vif) the The provisions of this Section 10.1 ARTICLE XI shall be binding upon the executors, heirs, legal representativesRepresentatives, personal Representatives, successor trustees and successors and assigns of each Company IndemnitorStockholder, and any references reference in this Agreement or the Escrow Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s rights hereunderof the Stockholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense The Letters of Transmittal shall provide that any Stockholder or settlement of any claims for which Parent Indemnitees may be entitled to indemnification Optionholder receiving consideration pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors Agreement shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative agreed upon execution and delivery of the Company Indemnitors for Letters of Transmittal, that the purposes of Stockholders' Representative, will be appointed as such person's Attorney-in-Fact and representative, with the obligations, power and authority (i) to do any and all things and to execute any and all documents or other papers, in each such person's name, place and stead, in any way in which each such person could do if personally present, in connection with this Agreement and the Escrow transactions contemplated by this Agreement (the “"Transactions"), (ii) to amend, cancel or extend, or waive the terms of, this Agreement or any ancillary agreement and (iii) to act on behalf of Bionics Trust with respect to any claims (including the settlement thereof) made by Parent for indemnification pursuant to Article VII or any dispute arising under Section 2.11 ; provided, however, that without the written consent of the Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights at such time, the Stockholders’ ' Representative shall not take or approve any of the matters listed on Exhibit H; provided, further, that if the Stockholders' Representative has not completed a required solicitation of consent and notified Parent in writing of the results of such solicitation within 30 business days of written request by Parent seeking the consent of the Earn Out Recipients with respect to any of the matters listed on Exhibit H, such consent shall be deemed not to have been provided. The solicitation of any consent referred to in the preceding sentence shall be conducted by and at the expense of the Stockholders' Representative”). The Principal Stockholders, each Stockholder and Optionholder that executes and delivers a Letter of Transmittal and each Earn Out Recipient shall be bound by all actions taken by the Stockholders' Representative consistent with this Section 2.12(a) in his, her or their capacity as the Stockholders' Representative, and neither Parent nor the Surviving Corporation shall be liable to any of the Stockholders or Earn Out Recipients for any action taken or omitted to be taken by it in such reliance or for any action taken or omitted to be taken by the Stockholders' Representative.
(b) Any of the individuals constituting the Stockholders' Representative may resign at any time or be removed by the vote or written consent of Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights; provided however, that such resignation or removal shall not be effective until such time as a successor to such individual shall have been elected. In the event of the death, resignation or removal of any of the individuals who constitute the Stockholders’ Representative dies' Representative, becomes unable to perform his a successor shall be elected (and may be removed and replaced) by the remaining individuals who constitute the Stockholders' Representative; provided that if no such individuals remain, such successor shall be elected (and may be removed and replaced) by the vote or her responsibilities hereunder or resigns from such position, the Company Indemnitors written consent of Earn Out Recipients who collectively hold a majority in interest more than 50% of the Escrow Fund Earn Out Rights at such time, such election (or removal and replacement) to become effective upon the written acceptance thereof by such new individual. Such election shall be conducted by the Earn Out Recipient who holds the greatest number of Earn Out Rights at such time who is willing to conduct the election, and shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative paid for all purposes of this Agreement and by the documents delivered pursuant heretoEarn Out Recipients.
(c) All decisions In connection with this Agreement and actions by any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ ' Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representativehereunder, the Stockholders’ ' Representative shall not be liable for incur no responsibility whatsoever to any Stockholder, Earn Out Recipient, or Bionics Trust by reason of any error in judgment or other act done or omission performed or omitted hereunder or under the Escrow in connection with this Agreement as Stockholders’ Representative while acting in good faithor any such other agreement, and instrument or document, excepting only responsibility for any act done or omitted failure to be done pursuant to the advice of counsel act which represents gross negligence or willful misconduct. Each Earn Out Recipient and Bionics Trust shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of indemnify the Stockholders’ ' Representative and against all Losses arising out of or in connection with the acceptance any claim, investigation, challenge, action or administration of his/her duties hereunder proceeding or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act appeal thereof, relating to the acts or omission as omissions of the Stockholders’ Representative' Representative hereunder. The Stockholders' Representative shall, except for any liability imposed by Legal Requirements for gross negligence at the expense of the Earn Out Recipients and Bionics Trust, be entitled to engage such counsel, experts and other agents and consultants as he or willful misconductshe shall deem necessary in connection with exercising his or her powers and performing his or her function hereunder.
Appears in 1 contract
Stockholders’ Representative. (ai) In order to efficiently administer certain matters the transactions contemplated hereby following the Closinghereby, including (A) the determination of the Closing Total Equity Adjustment and the Net Closing Date Payment, (B) the handling and distribution of the Adjustment Reserve and the Escrowed Funds, (C) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, (D) the determination of whether an Earnout Event has occurred, (E) the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders and the Optionees may be entitled required to indemnification indemnify the Buyer pursuant to Section 910 hereof, by and (F) the adoption prosecution and/or settlement of this Agreementthe FBI Claim, the Company Indemnitors shall be deemed to have designated Stockholders hereby designate H. ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”). In connection with the foregoing, the Stockholders’ Representative shall provide written notice to the Trustee of the Employee Stock Ownership Plan prior to five (5) business days of any decision regarding the settlement of any material claim.
(bii) The Stockholders hereby authorize the Stockholders’ Representative (A) to make all decisions relating to the determination of the Closing Total Equity Adjustment and the Net Closing Date Payment, (B) to make all decisions relating to the handling and distribution of the Adjustment Reserve and the Escrowed Funds, (C) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders and the Optionees to consummate the transactions contemplated hereby, or defend and/or settle any claims for which the Stockholders and the Optionees may be required to indemnify the Buyer pursuant to Section 10 hereof, (D) to determine on behalf of the Stockholders whether an Earnout Event has occurred, (E) to take all action necessary in connection with the prosecution and/or settlement of the FBI Claim, (F) to give and receive all notices required under this Agreement, and (G) to take any and all additional action contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(iii) In the event that the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold Stockholders holding, prior to the Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(civ) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow AgreementRepresentative, including without limitation (A) any agreement between the Stockholders’ Representative and Parent the Buyer relating to the determination of the Closing Total Equity Adjustment and/or the Net Closing Date Payment, (B) the handling and distribution of the Adjustment Reserve and the Escrowed Funds, (C) the determination of whether an Earnout Event has occurred, (D) the defense or settlement of any claims for which Parent or the Surviving Company Stockholders and the Optionees may be entitled required to indemnification indemnify the Buyer pursuant to Section 910 hereof, or (E) the prosecution and/or settlement of the FBI Claim, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(ev) By their adoption his or its execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, each Stockholder agrees that:
(i) A. the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ Representative as to any (1) the determination of the matters described in this Closing Total Equity Adjustment and/or the Net Closing Date Payment, (2) the handling and distribution of the Adjustment Reserve and the Escrowed Funds, (3) any agreement concerning whether an Earnout Event has occurred, (4) the defense and/or settlement of any claims for indemnification by the Buyer pursuant to Section 10.1(e)10 hereof, (5) the prosecution and/or settlement of the FBI Claim, or (6) any other actions required or permitted to be taken by the Stockholders’ Representative hereunder, and no party Party shall have any cause of action against Parent the Buyer for any action taken by Parent the Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iii) B. all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) C. the provisions of this Section 10.1(e2(g) are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and;
(vi) D. remedies available at law for any breach of the provisions of this Section 10.1 2(g) are inadequate; therefore, the Buyer shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if the Buyer brings an action to enforce the provisions of this Section 2(g); and
E. the provisions of this Section 2(g) shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company IndemnitorStockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(fvi) From All liabilities, claims, obligations, fees and after expenses (including reasonable attorneys’ fees) incurred by the Closing, Parent shall cause Stockholders’ Representative (other than to the Surviving Company to provide extent arising out of the Stockholders’ Representative, at his expense, with reasonable access ’s fraud or willful breach of this Agreement) shall be paid by the Stockholders and (pursuant to information about the Surviving Company and the reasonable assistance terms of the officers and employees Optionee Agreement) Optionees based on their pro rata number of shares of Common Stock (on a fully diluted basis as if the Surviving Company for purposes of performing his duties and exercising his rights under this AgreementOptions had been exercised in full).
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Management Systems Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders may be entitled required to indemnification indemnify the Buyer pursuant to Section 9, by the adoption of this AgreementArticle VII hereof, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇Stockholders hereby designate J▇▇▇▇▇ ▇▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) The Stockholders hereby authorize the Stockholders’ Representative (i) to take all action necessary in connection with the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer pursuant to Article VII hereof, (ii) to give and receive all notices required to be given under this Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Company Indemnitors who hold Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares as set forth on Schedule I attached hereto shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow AgreementRepresentative, including including, without limitation, any agreement between the Stockholders’ Representative and Parent the Buyer relating to any adjustments to the Purchase Price, or the defense or settlement of any claims for which Parent or the Surviving Company Stockholders may be entitled required to indemnification indemnify the Buyer pursuant to Section 9Article VII hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ Representative as to the determination of any adjustments to the Purchase Price, or the settlement of any claims for indemnification by the matters described in this Section 10.1(e)Buyer or the Company pursuant to Article VII hereof or any other actions required to be taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against Parent the Buyer for any action taken by Parent the Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) 1.06 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor 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 1.06 are inadequate; therefore, the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Section 1.06; and
(viv) the provisions of this Section 10.1 1.06 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From All fees and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have expenses incurred by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved paid by the Stockholders in proportion to their ownership of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions Shares as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductset forth on Schedule I attached hereto.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated The WCAS Securityholders hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , the MC Stockholders hereby appoint M/C Venture Partners V, L.P., the CL Stockholders hereby appoint [ ], the NT Stockholders hereby appoint [ ] and the CN Stockholders hereby appoint [ ], in each case, as the attorney-in-fact of such Holders, with full authority to act, for and on behalf of any or all of such Holders (with full power of substitution in the premises), in connection with such matters as this Agreement provides for action by each such representative (each of the Company Indemnitors for above-named representatives, as well as any successor representative which the purposes of this Agreement WCAS Securityholders, the MC Stockholders, the CL Stockholders, the NT Stockholders or the CN Stockholders may appoint from time to time and the Escrow Agreement (the designate in writing to Parent to replace such above-named representative being referred to herein as a “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The No Stockholders’ Representative shall be entitled liable to any Holder, Parent or their respective Affiliates or any other Person with respect to any action taken or omitted to be indemnified taken by such Stockholders’ Representative in its role as a Stockholders’ Representative under or in connection with this Agreement (all of which actions and held harmless omissions being legally binding upon the Holders represented by the Company Indemnitors against any losssuch Stockholders’ Representative), liability unless such action or expense incurred without omission constitutes fraud, gross negligence, willful misconduct or bad faith on the part of the such Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow AgreementRepresentative. The Stockholders’ Representative Parent shall be entitled to recover any out-of-pocket costs rely on such appointments and expenses reasonably incurred by the treat each Stockholders’ Representative in connection with actions taken by as the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby duly appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Holder that shall have appointed such Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled with respect to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in set forth herein. Each Holder who executes this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costsby such execution and without any further action, expenses confirms such appointment and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseauthority.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇K▇▇▇▇ ▇▇▇▇▇ & Company, L.P. shall be constituted and appointed as the representative agent and attorney-in-fact (“Stockholders’ Representative”) for and on behalf of the Company Indemnitors for Sellers to give and receive notices and communications made pursuant to this Agreement, to pay on behalf of the purposes Sellers expenses incidental to the preparation hereof and the carrying out by the Sellers of this Agreement and the Escrow Agreement (consummation by the “Stockholders’ Representative”).
(b) In Sellers of the event transactions contemplated hereby, to participate in the Closing on behalf of each of the Sellers, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative dies, becomes unable for the accomplishment of the foregoing. Such agency may be changed from time to perform his or her responsibilities hereunder or resigns from such position, time upon not less than two Business Days’ prior written notice to the Company Indemnitors Buyer by the Sellers who hold as of the date of this Agreement owned a majority in interest of the Escrow Fund at such time Shares. No bond shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes required of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Sellers for purposes of this Agreement.
(b) The Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faithfaith and not in a manner constituting gross negligence, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Sellers shall severally indemnify the Stockholders’ Representative shall be entitled to be indemnified and held hold him/her harmless by the Company Indemnitors against any loss, liability or expense Loss incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder hereunder.
(c) The execution and delivery by any Seller of this Agreement shall be deemed to be approval by such Seller of the terms of the provisions of this Section 11.15 and of the appointment of the Stockholders’ Representative.
(d) A decision, act, consent or under instruction of the Escrow Agreement. The Stockholders’ Representative shall constitute a decision of all Sellers and shall be entitled to recover final, binding and conclusive upon each such Seller, and the Buyer may rely exclusively and conclusively upon any out-of-pocket costs and expenses reasonably incurred by such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Seller. The Buyer is hereby relieved from any obligation to any Person for any acts done by it in connection accordance with actions taken by such decision, act, consent or instruction of the Stockholders’ Representative. Except for a notice regarding the change of the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreementas contemplated by Section 11.15(a)), the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled to rely conclusively on the instructions and decisions disregard any notices or communications given or made by the Sellers unless given or made through the Stockholders’ Representative as to any of the matters described in this Section 10.1(e)Representative. Each Seller releases, remises, and no party shall have forever discharges the Buyer and its Affiliates, their respective representatives and insurers, and their respective successors and assigns, and each of them of and from any cause and all claims, demands, debts, accounts, covenants, agreements, obligations, costs, expenses, actions or causes of action against Parent for any action taken by Parent of every nature, character or description, without limitation of law, equity or otherwise, to the extent based in whole or in part on Buyer’s reliance upon any such instructions or on the decisions;
(iii) all actions, decisions acts, consents and instructions of the Stockholders’ Representative shall be as being the final, binding and conclusive and binding upon act of all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against Sellers.
(e) Any successor Stockholders’ Representative appointed in accordance with the Stockholders’ Representative for any action taken, decision made or instruction given by Agreement shall be the Stockholders’ Representative under this Agreement or hereunder.
(f) Without limiting the Escrow Agreementgenerality of the foregoing, except for fraud or willful breach the execution and delivery by any Seller of this Agreement on shall be deemed to be the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities authorization by such Seller of the Stockholders’ Representative (to execute and deliver the Escrow Agreement on such Seller’s behalf, with such changes to the form of Escrow Agreement set forth in his capacity Exhibit F hereto as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severableBuyer, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.Escrow Agent may approve
Appears in 1 contract
Stockholders’ Representative. (a) In order to administer efficiently administer certain matters contemplated hereby following (i) the Closing, including implementation of the defense or Agreement by the Stockholders and (ii) the settlement of any claims for which Parent Indemnitees may dispute with respect to the Agreement, the Stockholders hereby designate Gary ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ their representative (the "Stockholders' Representative").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Stockholders or the settlement of any dispute, (ii) to give and receive all notices required to be entitled given under the Agreement and (iii) to indemnification pursuant take any and all additional action as is contemplated to Section 9, be taken by or on behalf of the Stockholders by the adoption terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Indemnitors shall be deemed Shares to have designated Buyer.
(c) In the event that the Stockholders' Representative dies, becomes legally incapacitated or resigns from such position, John ▇▇▇▇▇▇▇▇▇▇▇ , ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time I shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and Agreement; however, no change in the documents delivered pursuant hereto.
(c) All decisions and actions Stockholders' Representative shall be effective until Buyer is given notice of it by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ ' Representative as to any of actions required or permitted to be taken by the matters described in this Section 10.1(e)Stockholders or the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Parent Buyer for any action taken by Parent Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iviii) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities remedies available at law for any breach of the Stockholders’ Representative (in his capacity as provisions of this Section 1.4 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the Stockholders’ Representative) in connection with matters related necessity of proving damages if Buyer brings an action to enforce the provisions of this Agreement and the Company Ancillary Agreements;Section 1.4; and
(viv) the provisions of this Section 10.1(e) 1.4 are independent and severable, are shall constitute an irrevocable and power of attorney, coupled with an interestinterest and surviving death, granted by the Stockholders to the Stockholders' Representative and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholder.
(fe) From All fees and after the Closing, Parent shall cause the Surviving Company to provide expenses incurred by the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ ' Representative shall not have be paid by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The the Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it as provided in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductSection 7.1 hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated Each Stockholder hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇irrevocably constitutes and appoints ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, "Stockholders' Representative") as such Stockholder's attorney-in-fact and agent in connection with all actions to be taken by the representative Stockholders pursuant to Section 3.02, Section 4.01 and Articles XII and XIV (including the settlement of indemnification claims and the decision to pursue legal action against other Persons on behalf of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Each Stockholder hereby agrees that:
(i) in all matters in which action by the Stockholders’ ' Representative is hereby appointed and constituted required or permitted, the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf Stockholders' Representative is authorized to act according to on behalf of such Stockholder, notwithstanding any dispute or disagreement among the terms of this Agreement Stockholders or between any Stockholder and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent ' Representative, and Purchaser shall be entitled to rely conclusively on the instructions any and decisions given or made all action taken by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ ' Representative under this Agreement without any liability to, or obligation to inquire of, any of the Escrow Agreementother Stockholders, except for fraud or willful breach of this Agreement notwithstanding any knowledge on the part of the Stockholders’ RepresentativePurchaser of any such dispute or disagreement;
(ivii) notice to the Stockholders’ Representative may use ' Representative, delivered in the Expense Reserve to satisfy costsmanner provided in Section 17.01, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with deemed to be notice to all Stockholders for the transactions contemplated by purposes of this Agreement; and
(viiii) the provisions power and authority of this Section 10.1 shall be binding upon the executorsStockholders' Representative, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references as described in this Agreement, shall continue in force until all rights and obligations of the Stockholders under this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderhave terminated, whether pursuant to testamentary disposition, the laws of descent and distribution expired or otherwisebeen fully performed.
(fc) From and after the Closing, Parent Each Stockholder shall cause the Surviving Company to provide severally indemnify the Stockholders’ ' Representative against any Losses (except such as result from such Stockholders' Representative, at his expense, 's gross negligence or willful misconduct) that such Stockholder may suffer or incur in connection with reasonable access to information about any action or omission of such person as the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder' Representative. The Stockholders’ ' Representative shall not be liable to any Company Stockholder for with respect to any action or omission taken or omitted to be taken by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ ' Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable pursuant to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representativethis Section 17.11, except for any liability imposed by Legal Requirements for the Stockholders' Representative's gross negligence or willful misconduct.
Appears in 1 contract
Sources: Option and Acquisition Agreement (CCC Information Services Group Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By virtue of the Closing, including approval of the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, Merger and this Agreement by the adoption requisite vote of this Agreement, the Company Indemnitors Stockholders, each of the Company Stockholders shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ agreed to appoint JMI Equity Fund, L.P. as agent (the representative "Stockholders' Representative") for and on behalf of the Company Indemnitors Stockholders, their respective Affiliates and their respective representatives to give and receive notices and communications, to organize or assume the defense of third-party claims, to assign claims to individual Company Stockholders, to agree to, negotiate or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims, and to take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the purposes accomplishment of this Agreement the foregoing. Such agency may be changed by the holders of rights to receive at least sixty percent (60%) of the Merger Consideration upon not less than ten (10) days' prior written notice to Itron. No bond shall be required of the Stockholders' Representative, and the Escrow Agreement (Stockholders' Representative shall receive no compensation for services rendered; provided, however, that they shall be entitled to reimbursement of their expenses in serving as Stockholders' Representative, which amounts shall be deducted from the “Escrow. Notices or communications to or from the Stockholders’ Representative”)' Representative shall constitute notice to or from the Company Stockholders.
(b) In the event the The Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ ' Representative shall not be liable to any of the Company Stockholders for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ ' Representative while acting in good faithexcept to the extent they individually or collectively acted with gross negligence or willful misconduct, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faiththat the Stockholders' Representative did not act with gross negligence or willful misconduct. The Company Stockholders shall severally and proportionately indemnify the Stockholders’ ' Representative shall be entitled to be indemnified and held hold them harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith gross negligence or willful misconduct on the part of the Stockholders’ ' Representative and arising out of or in connection with the acceptance or administration of his/her the duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharehereunder.
(ec) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ ' Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving former Company Business and operations and the reasonable assistance of the Itron's officers and employees of the Surviving Company for purposes of performing his the duties and exercising his the rights under this Agreement.
(g) The hereunder; provided, that the Stockholders’ ' Representative shall treat confidentially and not have by reason of this Agreement disclose any nonpublic information from or about Itron to anyone (except on a fiduciary relationship in respect of any Company Stockholderneed to know basis to individuals who agree to treat such information confidentially). The Stockholders’ ' Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess a third party beneficiary of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductterms of this Section 10.7(c).
Appears in 1 contract
Sources: Merger Agreement (Itron Inc /Wa/)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement By virtue of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption each Selling Stockholder’s execution and delivery of this Agreement, each Selling Stockholder shall have approved, among other matters, the Company Indemnitors indemnification terms set forth in Section 9 and shall irrevocably appoint the Stockholders’ Representative as its agent for all purposes of this Agreement, including without limitation to give and receive notices and communications in connection with a claim for indemnification, to amend or waive any provision of this Agreement, to agree to, negotiate, enter into settlements and compromises of, and 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 judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Purchaser shall be deemed entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Seller Indemnifying Party by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Seller Indemnifying Party by the Stockholders’ Representative, as fully binding upon such Seller Indemnifying Party. If the Stockholders’ Representative shall resign, be removed or become unable to fulfill its responsibilities as agent of the Seller Indemnifying Parties, then the Seller Indemnifying Parties shall, within ten (10) days after such resignation, removal or inability, by action of any two (2) Selling Stockholders, appoint a successor agent and, promptly thereafter, shall notify the Purchaser of the identity of and contact information for such successor. Any such successor shall become the “Stockholders’ Representative” for purposes of this Agreement. A decision, act, agreement, consent, instruction or waiver of the Stockholders’ Representative (taken in its capacity as Stockholders’ Representative), including an amendment, extension or waiver of this Agreement pursuant to Section 10.14, shall constitute a unanimous decision of the Selling Stockholders and shall be final, binding and conclusive on the Selling Stockholders.
(b) At the Closing, the Purchaser will wire to the Stockholders’ Representative an amount of $60,000 (the “Expense Fund”), which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement, and which amount, together with any fees paid by the Purchaser at the Closing to the Stockholders’ Representative, shall be deducted from the Initial Cash Payment pursuant to Section 1.2(a)(i). The Selling Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have designated had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence, willful misconduct or bad faith. The Stockholders’ 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 make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, or otherwise upon the request of the Selling Stockholders, the Stockholders’ Representative shall disburse the balance of the Expense Fund to the Selling Stockholders based on such Selling Stockholders’ Pro Rata Percentage. For tax purposes, the Expense Fund shall be treated as having been received and voluntarily set aside by the Selling Stockholders at the time of Closing. The Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Expense Fund and is not responsible for any tax reporting or withholding with respect thereto. The parties hereto have caused this STOCK PURCHASE AGREEMENT to be executed and delivered as of the date first above written. By:___/s/ ▇▇▇▇ Walker______________ Name:_Neal Walker________________ Title:__President and CEO___________ By:__/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ _______ Name:__ ▇▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies▇. Christiano______ Title:____President________________ JAK1, becomes unable to perform his or her responsibilities hereunder or resigns from such positionLLC By:____/s/ Illegible________________ Name:_Illegible___________________ Title:__Manager___________________ JAK2, the Company Indemnitors who hold a majority LLC By:___/s/ Illegible_________________ Name:_Illegible___________________ Title:__Manager___________________ JAK3, LLC By:___/s/ Illegible_________________ Name:_Illegible___________________ Title:__Manager___________________ SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement its capacity as Stockholders’ Representative while acting in good faithBy:___/s/ ▇. ▇▇▇▇ Koenig___________ Name:_W. ▇▇▇▇ Koenig____________ Title:__Managing Director_________ For the avoidance of doubt, and any act done or omitted to be done pursuant to the advice of counsel following Regulatory Milestone Payments shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled made only with respect to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interestPatent Products, and shall not be enforceable notwithstanding owed or paid with respect to any rights Know-how Products or remedies that any Company Indemnitor may have in connection with Additional Products. AA Oral Product: Upon the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns first occurrence of each Company Indemnitorof the following Regulatory Milestone events for an AA Oral Product, and any references in this Agreement the Purchaser shall make the following one-time milestone payments to the Company Indemnitors Selling Stockholders (i.e., each milestone payment will only be paid one time): NDA filing in the United States $[***] FDA approval of an NDA in the United States $[***] Regulatory Approval in the European Union $[***] Regulatory Approval in Japan $[***] AA Topical Product: Upon the first occurrence of each of the following Regulatory Milestone events for an AA Topical Product, the Purchaser shall mean and include make the successors following one-time milestone payments to the Company Indemnitor’s rights hereunderSelling Stockholders (i.e., whether pursuant to testamentary dispositioneach milestone payment will only be paid one time): NDA filing in the United States $[***] FDA approval of an NDA in the United States $[***] Regulatory Approval in the European Union $[***] Regulatory Approval in Japan $[***] AGA Product: Upon the first occurrence of each of the following Regulatory Milestone events for an AGA Product, the laws Purchaser shall make the following one-time milestone payments to the Selling Stockholders (i.e., each milestone payment will only be paid one time): NDA filing in the United States $[***] FDA approval of descent and distribution or otherwise.
(f) From and after an NDA in the Closing, Parent shall cause United States $[***] Regulatory Approval in the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship European Union $[***] Regulatory Approval in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.Japan $[***]
Appears in 1 contract
Sources: Stock Purchase Agreement (Aclaris Therapeutics, Inc.)
Stockholders’ Representative. (a) In order FBR Investment Management, Inc. shall act as exclusive agent and attorney-in-fact to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative act on behalf of the Company Indemnitors for Stockholders with respect to any and all matters, claims, controversies, or disputes arising out of the purposes terms of this Agreement or any of the Transaction Documents and shall receive and hold the Escrow Agreement Merger Note on behalf of the Stockholders and to take any action on behalf of the Stockholders thereunder (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and . If more than one Person acts as the Stockholders’ Representative, a decision of a majority of such Persons shall be conclusive. In the event of the death, disability or resignation of a Stockholders’ Representative, a successor may be appointed by a majority in interest (based on the aggregate principal amount payable to the Stockholders under the Merger Note) of the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled have the power to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate or in the best interests of the Stockholders, as fully as if each such Stockholder was acting on its, his or her own behalf with respect to the Merger Note and all claims for indemnification under this Agreement and to take any action or no action in connection therewith as the Stockholders’ Representative may deem appropriate as effectively as the Stockholders could act themselves, including the settlement or compromise of any dispute or controversy. The authority granted hereunder is deemed to be indemnified coupled with an interest. The death or incapacity of any Stockholder shall not terminate the authority and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part agency of the Stockholders’ Representative. Verticalnet shall have the right to rely on any actions taken or omitted to be taken by the Stockholders’ Representative as being the act or omission of the Stockholders, without the need for any inquiry, and arising out any such actions or omissions shall be binding upon each of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow AgreementStockholders. The Stockholders’ Representative shall be entitled to recover incur no liability, loss, damage or expense as a result of any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative action taken in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (good faith hereunder, including the hiring of legal counsel and the incurring of any legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Shareexpenses.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Stockholders’ Representative. The Stockholders shall at all times maintain a representative (athe “Stockholders’ Representative”) In order for purposes of taking certain actions and giving certain consents on behalf of the Major Stockholders prior to efficiently administer certain matters contemplated hereby following the Closing, including and the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Effective Time Company Holders from and after the Closing, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇as specified herein. The Major Stockholders hereby appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the initial Stockholders’ Representative, and immediately upon the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow approval of this Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability requisite vote or expense incurred without bad faith on the part written consent of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors each Stockholder shall be deemed to have agreed, in addition consented to such appointment (or any then acting successor pursuant to the foregoing, that:
(iterms hereof) and the terms hereof. Another person shall be appointed as the Stockholders’ Representative if the person so designated (or any successor thereof) is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her unwilling or its name and on his, her or its behalf unable to act according to the terms of this Agreement and the Escrow Agreementso act. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on . Each of the instructions Stockholders acknowledges that actions taken, consents given and decisions given or representations made by the Stockholders’ Representative as to any on behalf of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 Stockholders pursuant hereto shall be binding upon the executorsMajor Stockholders and the Effective Time Company Holders, heirsas applicable, legal representatives, successors including all actions under Section 7.2(b) and assigns under the Holdback Escrow Agreement. This appointment and grant of power and authority by each Company Indemnitor, Stockholder is coupled with an interest and is irrevocable and shall not be terminated by any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderact of any Stockholder or by operation of law, whether pursuant to testamentary disposition, by the laws of descent and distribution death or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect incapacity of any Company individual Stockholder, or by the occurrence of any other event. The Stockholders’ Representative shall not be liable is authorized to any Company Stockholder for take any action taken on behalf of the Major Stockholders or omitted by it hereunder the Effective Time Company Holders, as applicable, to facilitate or under any other document administer the transactions contemplated hereby, or in connection therewithincluding, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faithwithout limitation, amending this Agreement, and if any executing such apportionment other documents or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions instruments as the Stockholders’ Representative deems appropriate in its sole discretionappropriate. Each Company Stockholder further agrees to indemnify and hold the The Stockholders’ Representative harmless may resign at any time, and may be removed for any reason or no reason by the vote or written consent of, as applicable, (i) if prior to the Effective Time, the Major Stockholders holding a majority of the then outstanding aggregate fully diluted Shares held by the Major Stockholders, or (ii) from and against any lossafter the Effective Time, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductEffective Time Company Holders holding a majority of the outstanding aggregate fully diluted Shares at the Effective Time.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters (i) the determination of the Net Worth of the Company, the Adjusted Purchase Price and the Adjusted Amount (as defined in Subsection 12.04 hereof), (ii) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby following the Closinghereby, including and (iii) the defense or and/or settlement of any claims for which Parent Indemnitees the Stockholders may be entitled required to indemnification indemnify the Buyer or the Company pursuant to Section 9, by the adoption of this Agreement10 hereof, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇Stockholders hereby designate ▇▇▇▇▇ ▇▇▇▇▇ as the their representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions relating to the determination of the Net Worth of the Company, the Adjusted Purchase Price and the Adjustment Amount, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 10 hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders’ ' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Company Indemnitors who hold Closing, a majority in interest of the Escrow Fund at such time shall be authorized to and Shares as set forth on Schedule I attached hereto shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a the Stockholders’ ' Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(cd) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement' Representative, including including, without limitation, any agreement between the Stockholders’ ' Representative and Parent the Buyer relating to the determination of the Net Worth of the Company, the Adjusted Purchase Price or the Adjustment Amount, or the defense or settlement of any claims for which Parent or the Surviving Company Stockholders may be entitled required to indemnification indemnify the Buyer and/or the Company pursuant to Section 910 hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Sharesame.
(e) By their adoption execution of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, Stockholders agree that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given of the Stockholders' Representative as to the determination of the Net Worth of the Company, the Adjusted Purchase Price or made the Adjustment Amount, or the settlement of any claims for indemnification by the Buyer or the Company pursuant to Section 10 hereof or any other actions required to be taken by the Stockholders’ ' Representative as to any of the matters described in this Section 10.1(e)hereunder, and no party hereunder shall have any cause of action against Parent the Buyer for any action taken by Parent the Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders' Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ ' Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ ' Representative for any action taken, decision made or instruction given by the Stockholders’ Representative Stockholders'Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of by the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(viii) the provisions of this Section 10.1(e) Subsection 1.06 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor 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 Subsection 1.06 are inadequate; therefore, the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Subsection 1.06; and
(viv) the provisions of this Section 10.1 Subsection 1.06 shall be binding upon the executors, heirs, legal representatives, representatives and successors and assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company Indemnitor’s Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From All fees and after the Closing, Parent shall cause the Surviving Company to provide expenses incurred by the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ ' Representative shall not have be paid by reason the Stockholders in proportion to their ownership of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions Shares as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductset forth on Schedule I attached hereto.
Appears in 1 contract
Stockholders’ Representative. Communications hereby designates Stockholders’ Representative to execute any and all instruments or other documents, and to do any and all other acts or things, after the Merger on behalf of or affecting the Participating Stockholders, which Stockholders’ Representative may deem necessary or advisable, or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the transactions contemplated hereby and the performance of all obligations hereunder before, at or following the Closing. Without limiting the generality of the foregoing, Stockholders’ Representative shall have the full and exclusive authority to (a) In order agree with Surviving Corporation with respect to efficiently administer certain matters contemplated hereby following any matter or thing required or deemed necessary by Stockholders’ Representative in connection with the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes provisions of this Agreement and calling for the Escrow Agreement (the “agreement of Stockholders’ Representative”).
(b) In the event the , give and receive notices on behalf of all Participating Stockholders’ Representative dies, becomes unable and act on behalf of Participating Stockholders in connection with any matter as to perform his which Participating Stockholders are or her responsibilities hereunder may be obligated or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to benefited under this Agreement or the Escrow Agreement, all in the absolute discretion of Stockholders’ Representative, (b) in general, do all things and perform all acts, including any agreement between the without limitation executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by Stockholders’ Representative to be necessary or advisable in connection with, this Agreement, and Parent relating to (c) take all actions necessary or desirable in connection with the defense or settlement of any indemnification claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9Article 8 and performance of obligations under Article 2, including to withhold funds for satisfaction of expenses or other liabilities or obligations or to withhold funds for potential indemnification claims made hereunder. All decisions by Stockholders’ Representative shall be binding upon all of the Company IndemnitorsParticipating Stockholders, and no Company Indemnitors Participating Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the same. Stockholders’ RepresentativeRepresentative may communicate with any Participating Stockholder or any other Person concerning its responsibilities hereunder, but it is not required to do so. Stockholders’ Representative has a duty to serve in good faith the interests of the Participating Stockholders and to perform its designated role under this Agreement, but Stockholders’ Representative shall not be liable for have no financial liability whatsoever to any act done or omitted Person relating to its service hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and (including any act done action taken or omitted to be done pursuant to the advice of counsel taken), except that it shall be conclusive evidence liable for harm which it directly causes by an act of such good faithwillful misconduct. The Participating Stockholders shall indemnify and hold harmless Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, expense (including reasonable attorney’s fees) or other liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative service as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except other than for fraud or harm directly caused by an act of willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the misconduct. Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses resign at any time by notifying Acquisition and liabilities of the Stockholders’ Representative (Participating Stockholders in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisewriting.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Otelco Inc.)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following By virtue of the ClosingCompany Stockholder Approval, including the defense or settlement and without any further act of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption holder of this AgreementCompany Shares, the holders of Company Indemnitors shall Shares will be deemed to have designated ▇▇▇▇▇appointed C▇▇▇▇▇▇ River Ventures, LLC (previously defined as the Stockholders’ Representative) as agent and attorney-in-fact for each holder of Company Shares (except such stockholders, if any, holding Appraisal Shares) for all matters relating to this Agreement, including to give and receive notices and communications; to bind the holders of Company Shares to the terms of the Escrow Agreement; to authorize delivery of cash from the Escrow Amount in satisfaction of claims by Parent or Surviving Corporation; to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims; and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
(b) The Stockholders’ Representative may be changed by the holders of Company Shares from time to time upon not less than 30 days’ prior written notice to Parent, provided that holders of a majority interest of the Escrow Amount agree to such removal of C▇▇▇▇▇▇ as River Ventures, LLC and any successors thereto and to the representative identity of the Company Indemnitors for substituted agent. A Stockholders’ Representative may resign at any time upon giving at least 30 days’ written notice to the purposes holders of this Agreement and interest in the Escrow Agreement (Account, except that no such resignation will become effective until the “appointment of a successor Stockholders’ Representative”).
(b) In . Upon resignation of a Stockholders’ Representative or a successor Stockholders’ Representative thereto, the event holders of a majority interest of the Escrow Amount will agree on a successor Stockholders’ Representative thereto within 30 days after receiving such notice. If holders of a majority interest of the Escrow Amount fail to agree upon a successor Stockholders’ Representative within such time, the resigning Stockholders’ Representative will have the right to appoint a successor Stockholders’ Representative, or if a Stockholders’ Representative is not designated within 45 days after receipt of the initial notice, Parent will designate a successor Stockholders’ Representative. Any successor Stockholders’ Representative will execute and deliver an instrument accepting such appointment and, without further acts, will be vested with all the rights, powers, and duties of the predecessor Stockholders’ Representative as if originally named as Stockholders’ Representative and thereafter the resigning Stockholders’ Representative will be discharged from any further duties and liability under this Agreement. No bond will be required of any Stockholders’ Representative, and no Stockholders’ Representative will receive compensation for his or her services. Notices or communications to or from the Stockholders’ Representative dies, becomes unable will constitute notice to perform his or her responsibilities hereunder or resigns from such position, each of the Company Indemnitors who hold a majority in holders of interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative Amount for all purposes of matters relating to this Agreement and the documents delivered pursuant heretoAgreement.
(c) All decisions and actions by the The Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall will not be liable for any act done or omitted hereunder or under as the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to . Holders of Company Shares on whose behalf the advice of counsel shall be conclusive evidence of such good faith. The Escrow Amount is contributed will severally indemnify the Stockholders’ Representative shall be entitled to be indemnified and held hold the Stockholders’ Representative harmless by the Company Indemnitors against any all loss, liability liability, or expense incurred without bad faith or willful misconduct on the part of the such Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her such Stockholders’ Representative’s duties hereunder or under hereunder, including the Escrow Agreementreasonable fees and expenses of any legal counsel retained by the Stockholders’ Representative. The Stockholders’ Representative shall will be entitled to recover any out-of-pocket the advance and reimbursement of costs and expenses reasonably incurred by or on behalf of the Stockholders’ Representative in connection with actions taken the performance of their duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders’ Representative pursuant to Representative, in accordance with the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata ShareAgreement.
(ed) By their adoption A decision, act, consent, or instruction of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf relating to act according to the terms of this Agreement will constitute a decision of the holders of Company Shares and will be final, binding, and conclusive upon each such holder. Parent, and all other persons entitled to indemnification under the Escrow Agreement. The Stockholders’ Representative hereby accepts Agreement or any other document or agreement entered into in connection herewith or therewith (the “Indemnified Persons”), may rely upon any such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given decision, act, consent, or made by instruction of the Stockholders’ Representative as being the decision, act, consent, or instruction of the holders of Company Shares. Parent and all other Indemnified Persons are hereby relieved from any liability to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent Person for any action taken acts done by Parent them in reliance upon any accordance with such instructions or decisions;
(iii) all actionsdecision, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitorsact, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action takenconsent, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) . IN WITNESS WHEREOF, Parent, Acquisition Sub, Company, and the Stockholders’ Representative may use the Expense Reserve have signed or caused their respective duly authorized officers to satisfy costssign this Agreement, expenses and liabilities all as of the Stockholdersdate first written above. F5 NETWORKS, INC. By /s/ J▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Its Sr. VP & General Counsel CHECKMATE ACQUISITION CORPORATION By /s/ J▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Its Sr. VP & General Counsel ACOPIA NETWORKS, INC. By /s/ C▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President and Chief Executive Officer C▇▇▇▇▇▇ RIVER VENTURES, LLC, as STOCKHOLDERS’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;REPRESENTATIVE By /s/ B▇▇▇▇ ▇▇▇▇▇ Its member
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; andARTICLE I THE MERGER
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance 1.1 Effective Time of the officers and employees Merger 1 1.2 Closing 1 1.3 Effects of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.Merger 1
Appears in 1 contract
Sources: Merger Agreement (F5 Networks Inc)
Stockholders’ Representative. (a) In order Each Stockholder who is a party to efficiently administer certain matters contemplated this Agreement hereby following the Closing, including the defense or settlement of any claims appoints ▇▇▇▇▇▇▇▇ as such Stockholder’s representative to act as Representative for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption all purposes of this Agreement, the Company Indemnitors Indemnity Escrow Agreement, the Working Capital Escrow Agreement and the transactions contemplated hereby and thereby, with the right, in such capacity, in his discretion, to do any and all things and to execute any and all documents in such Stockholder’s place and stead, in any way which such Stockholder could do if personally present, in connection with this Agreement, the Indemnity Escrow Agreement, the Working Capital Escrow Agreement and the transactions contemplated thereby, including the authority on behalf of such Stockholder, without giving notice to such Stockholder, to take any of the following actions:
(i) to accept on such Stockholder’s behalf any amount payable to such Stockholder under this Agreement, the Indemnity Escrow Agreement or the Working Capital Escrow Agreement;
(ii) to negotiate and otherwise deal with Buyer and Parent, in all respects including with respect to the working capital and any other adjustments;
(iii) to accept and give service of process and all other notices and other communications relating to this Agreement, the Indemnity Escrow Agreement or the Working Capital Escrow Agreement;
(iv) to settle any dispute relating to the terms of this Agreement, the Indemnity Escrow Agreement or the Working Capital Escrow Agreement;
(v) to execute any instrument or document that the Representative may determine is necessary or desirable in the exercise of his authority under this Agreement and power-of-attorney; and
(vi) to act in connection with all matters relating to this Agreement, the Indemnity Escrow Agreement, the Working Capital Escrow Agreement and the transactions contemplated thereby, including the power to employ auditors, attorneys and other Persons in connection therewith.
(b) Each Stockholder further agrees, as follows:
(i) Such Stockholder recognizes the inherent conflict of interest of ▇▇▇▇▇▇▇▇ as the Representative and as a continuing employee of Buyer and party to the ▇▇▇▇▇▇▇▇ Purchase Agreement and waives any claims with respect thereto;
(ii) the Representative (A) shall not incur any personal liability for acting in such capacity if in doing so he acts upon advice of counsel or otherwise acts in good faith, (B) shall not incur any personal liability for acting in such capacity in the absence of his willful misconduct, (C) may act upon any instrument or signature believed by him to be genuine and may assume that any Person purporting to give any notice or instruction under this Agreement or under any other related agreement or document believed by him to be authorized has been authorized to do so (D) shall not be responsible for the investment of any payments received from Parent for the benefit of Stockholders, and (E) shall be deemed promptly reimbursed by Stockholders, pro rata for out-of- pocket expenses incurred by him in his capacity of Representative, and such expenses shall first be satisfied from any Closing Payment paid by Parent and received by the Representative for the benefit of Stockholders, prior to have designated distribution of such payments to Stockholders; and
(iii) If ▇▇▇▇▇▇▇▇ is unable to serve or resigns as the Representative, Stockholders may appoint from among their ranks a substitute Representative to replace ▇▇▇▇▇▇▇▇, which individual shall have all the powers and authority granted to ▇▇▇ ▇▇▇▇▇▇ by this Section 14.14. Buyer shall accept such substitute Representative without objection; provided, however, that ▇▇▇▇▇▇▇▇ shall continue to serve as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Representative until such substitute Representative has been appointed by Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions At and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreementafter Closing, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative Buyer shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith deal exclusively with Representative on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled all matters relating to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreedIndemnity Escrow Agreement, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Working Capital Escrow Agreement and the Escrow Agreement. The Stockholders’ Representative transactions contemplated hereby accepts such appointment.
(ii) Parent involving the Stockholders who are a party hereto, or any of them, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given or any statements made by the Stockholders’ Representative as or documents executed or purported to any be executed on behalf of such Stockholders by the matters described in this Section 10.1(e)Representative, and no party shall have on any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any other action taken or omitted purported to be taken on behalf of such Stockholders by it hereunder the Representative including the appropriate communication or under any other document contemplated hereby, or in connection therewith, except that the delivery to such Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order The Stockholders hereby irrevocably appoint the Stockholders’ Representative as the exclusive proxy, representative, agent and attorney-in-fact of each of the Stockholders for all purposes under this Agreement, with full power of substitution, to efficiently administer certain matters make all decisions and determinations and to act and execute, deliver and receive all documents, instruments and consents on behalf of such Stockholders at any time, in connection with, and that may be necessary or appropriate to accomplish the intent and implement the provisions of, this Agreement and the Ancillary Agreements contemplated hereby following hereunder, and to facilitate the Closingconsummation of the Merger, and in connection with the activities to be performed by or on behalf of the Stockholders under this Agreement and the Ancillary Agreements, and each other agreement, document, instrument or certificate referred to herein or therein (including the defense or settlement of in connection with any and all claims for which Parent Indemnitees may be entitled to indemnification brought pursuant to Section 9this Agreement or the Ancillary Agreements). The Stockholders’ Representative may resign by providing thirty (30) days’ prior written notice to each Stockholder and Buyer. Upon the resignation of the Stockholders’ Representative, by such Stockholders who, immediately prior to the adoption Effective Time, held a majority of the Company Stock shall appoint a replacement Stockholders’ Representative to serve in accordance with the terms of this Agreement, provided, that if the holders of a majority of the Company Indemnitors Stock fail to appoint a replacement Stockholder Representative in accordance with the preceding clause of this sentence within forty-five (45) days of such Stockholders’ Representative resigning or becoming unable to serve, then Buyer shall have the right to replace the Stockholder’ Representative who shall serve until a successor is duly appointed by a majority of the Stockholders party to this Agreement. The Stockholders’ Representative shall have no other duties or obligations, at law, in equity, by contract or otherwise, to act on behalf of any Stockholder, except for those duties or obligations expressly set forth in this Agreement. The appointment as Stockholders’ Representative shall not be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as create any partnership or other fiduciary or similar relationship between the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”)Representative or any Stockholder.
(b) In Without limiting the event generality of the foregoing, the Stockholders’ Representative dies, becomes unable shall be granted the power to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest take any of the Escrow Fund at following actions on behalf of such time shall be authorized Stockholders: (i) to execute and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of deliver this Agreement and the documents delivered pursuant hereto.
Ancillary Agreements (c) All decisions and actions by in each case, with such modifications or changes therein as to which the Stockholders’ Representative Representative, in his, her or its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stockholders’ Representative, in his, her or its sole discretion, may deem necessary or desirable; (ii) to give and receive notices, communications and consents under this Agreement or the Ancillary Agreements; (iii) to receive and distribute payments pursuant to this Agreement or the Ancillary Agreements; (iv) to resolve any disputes under, or waive any provision of, this Agreement or the Ancillary Agreements; (v) to authorize delivery to any Indemnified Party of cash or other property from the General Escrow Account or Merger Consideration Escrow Account pursuant to this Agreement or the Escrow Agreement; (vi) to assert any claim or institute any Litigation; (vii) to investigate, including defend, contest or litigate any agreement between Litigation initiated by any Person against the Stockholders’ Representative or the General Escrow Amount; (viii) to receive process on behalf of any or all such Stockholders in any such Litigation; (ix) to negotiate, enter into settlements and Parent comprises of, resolve and comply with orders of courts and awards of arbitrators or other third party intermediaries with respect to any disputes arising under this Agreement or the Ancillary Agreements and with respect to indemnification claims under this Agreement or the Ancillary Agreements; (x) to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement or the Ancillary Agreements; (xi) to cause the General Escrow Amount and the Merger Consideration Escrow Amount to be invested in accordance with the terms and conditions of the Escrow Agreement, it being understood and agreed that in no event shall the Stockholders’ Representative be deemed to be providing investment advice with respect to the investment of any such funds, nor shall it have any liability for any loss incurred in connection with the investment of the General Escrow Amount or the Merger Consideration Escrow Amount; (xii) to finalize any post-Closing adjustment of the Merger Consideration; (xiii) to distribute any amounts to the Fully Diluted Common Holders after the Closing Date pursuant to this Agreement (including Section 2.11, Section 2.12, Section 2.13, Section 8.5, and Article X) or the Escrow Agreement (after paying any portions thereof to recipients of bonus payments) and (xiv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all actions that the Stockholders’ Representative, in his, her or its sole discretion, may consider necessary or proper or convenient in connection with or to consummate the Merger and carry out the activities described in this Agreement and the Ancillary Agreements. The Stockholders’ Representative shall not be responsible for any Loss suffered by, or liability of any kind to, such Stockholders arising out of any act done or omitted by the Stockholders’ Representative in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder, except to the extent such act or omission constitutes gross negligence or willful misconduct.
(c) Such appointment of the Stockholders’ Representative by the Stockholders is coupled with an interest and may not be revoked in whole or in part (including, upon the death or incapacity of any such Stockholder). Such appointment is binding upon the heirs, executors, administrators, estates, personal representatives, successors and assigns of each such Stockholder. All decisions of the Stockholders’ Representative are final and binding on all of the Stockholders, and shall be deemed authorized, approved, ratified and confirmed by the Stockholders, having the same force and effect as if performed by, or pursuant to the direct authorization of, the Stockholders, and no Stockholder shall have any right to challenge or otherwise question any such action, decision or instruction. Each Stockholder hereby waives any and all defenses which may be available to contest, negate or disaffirm any action of the Stockholders’ Representative taken in connection with the authority granted by this Agreement.
(d) The Stockholders’ Representative shall receive no compensation for service as such, but shall be entitled to hold the Reserve Amount, and to use all or a portion of the Reserve Amount to satisfy its payment obligations under this Agreement or any Ancillary Agreement and to reimburse itself for any and all expenses, charges and liabilities, including reasonable attorneys’ fees incurred by the Stockholders’ Representative in the performance or discharge of its duties pursuant to this Section 12.19; provided, however, the Stockholders’ Representative shall be entitled to hire counsel, accountants, tax preparers and other advisors and experts to assist or advise it in connection with the performance of its rights or obligations pursuant to this Section 12.19 or under the Escrow Agreement, and all such reasonable expenses incurred by the Stockholders’ Representative, including expenses relating to any such counsel, accountant, tax preparer, advisor or expert, shall be reimbursed using the Reserve Amount.
(e) The Stockholders shall indemnify on a several, but not joint basis (on a pro rata basis, in proportion to their respective share of the Merger Consideration) the Stockholders’ Representative for, and shall hold the Stockholders’ Representative harmless against, any damage, loss, charge, liability, claim, demand, action, suit, judgment, settlement, award, interest, penalty, fee, cost and expense (including reasonable attorneys’ fees and disbursements) incurred by the Stockholders’ Representative or any of its Affiliates and any of their respective managers, directors, officers, employees, agents, members, partners, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the defense Stockholders’ Representative’s conduct or settlement role as Stockholders’ Representative, other than damages, losses, charges, liabilities, claims, demands, actions, suits, judgments, settlements, awards, interest, penalties, fees, costs and expenses that have been finally determined by a court of any claims for which Parent competent jurisdiction to have primarily resulted from the Stockholders’ Representative’s fraud or willful misconduct in connection with its performance under this Agreement. This indemnification shall survive the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all termination of the Company Indemnitors, and no Company Indemnitors this Agreement. The Stockholders’ Representative shall have the right to objectcause the satisfaction of some or all of such indemnification obligations using any then available proceeds contained in the Reserve Amount. The Stockholders’ Representative may, dissentin all questions arising under this Agreement, protest rely on the advice of counsel, advisor or otherwise contest any such decision expert, and for anything done, omitted or action.
(d) As between the Company Indemnitors and suffered in good faith by the Stockholders’ RepresentativeRepresentative in accordance with such advice, and the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel Stockholders or any other person in connection therewith. In no event shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of be liable hereunder or in connection with the acceptance herewith for any consequential, indirect, incidental, special, unforeseen, exemplary or administration punitive damages, including diminution of his/her duties hereunder value, loss of business or under the Escrow Agreement. The Stockholders’ Representative reputation or opportunity, and in particular, without limitation, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by used in calculating the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms amount of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company StockholderLosses. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder the Stockholders’ Representative under this Agreement, the Escrow Agreement or under any other document contemplated herebyexecuted or delivered hereunder, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable law to any Company Stockholder for any apportionment or distribution of payments made by the extent it in good faith, and if any such apportionment or distribution is subsequently finally determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover primarily resulted from the other Company Stockholders any payment in excess fraud or willful misconduct of the amount Stockholders’ Representative.
(i) Under no circumstances does Buyer have any obligations with regard to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that any Stockholder, the Stockholders’ Representative shall not be obligated to take or any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Affiliates of any Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconductpayment of amounts set forth herein not to exceed the Base Enterprise Value plus the Milestone Payments, if payable.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Endo International PLC)
Stockholders’ Representative. (a) In order Each Stockholder has irrevocably constituted and appointed Stockholders’ Representative as its true and lawful agent and attorney-in-fact, with full power of substitution to efficiently administer certain matters contemplated hereby following perform the Closing, including duties of Stockholders’ Representative under the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption terms of this AgreementAgreement and to act in such Stockholder’s name, the Company Indemnitors shall be deemed place and stead with respect to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes all transactions contemplated by and all terms and provisions 45 of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative diesRelated Documents, becomes unable and to perform his or her responsibilities hereunder or resigns from act on such position, the Company Indemnitors who hold a majority Stockholder’s behalf in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to any Proceeding involving this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company IndemnitorsRelated Document, and no Company Indemnitors shall have the right to object, dissent, protest do or otherwise contest any refrain from doing all such decision or action.
(d) As between the Company Indemnitors further acts and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faiththings. The Stockholders’ Representative shall be entitled to be indemnified have all rights and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, powers set forth herein in addition to all the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed rights and constituted the true and lawful attorney-in-fact of each Company Indemnitor, with full power in his, her powers it shall deem necessary or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have appropriate in connection with the transactions contemplated by this AgreementAgreement and the Related Documents, including the power:
(a) to receive on behalf of, and to distribute (after (A) payment of any unpaid expenses and Liabilities chargeable to Stockholders or the Company Group prior to the Closing in connection with the transactions contemplated by this Agreement and the Related Documents and (B) payment of any expenses incurred by Stockholders’ Representative in its capacity as such, including the expenses of attorneys and accountants, to the extent the Expense Reserve Amount is exhausted), all amounts payable to such Stockholder under the terms of this Agreement and the Related Documents;
(b) to do or refrain from doing any further act or deed on behalf of such Stockholder which Stockholders’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Related Documents, as fully and completely as such Stockholder could do if personally present;
(c) to amend this Agreement on behalf of Stockholders; and
(vid) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the replace itself as Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, Each Selling Stockholder and the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇hereby irrevocably designates and appoints ▇▇▇▇▇▇ ▇▇▇▇▇ . Angle as the representative of Stockholders' Representative (the "Stockholders' Representative") to represent and act for him, her or it for all purposes in his, her or its capacity as a Selling Stockholder or the Company Indemnitors for the purposes of under this Agreement and any Ancillary Agreement, but only for the Escrow specific purposes specified in this Agreement and any Ancillary Agreement, subject only to the terms and conditions hereof and thereof (each such purpose, a "Designated Purpose"). The Stockholders' Representative hereby accepts such designation and appointment and agrees to represent and act for the “Stockholders’ Representative”)Selling Stockholders and the Company under this Agreement, and any Ancillary Agreement, with respect to each Designated Purpose in accordance with the terms and conditions set forth herein and therein.
(b) In the event discharging its duties and responsibilities with respect to each Designated Purpose hereunder and under any Ancillary Agreement, the Stockholders’ ' Representative diesshall have all rights and powers necessary and incident to the proper discharge thereof, becomes unable and any decision or act of the Stockholders' Representative with respect to perform his or her responsibilities hereunder or resigns from such position, each Designated Purpose shall be conclusive and absolutely binding upon each and all of the Stockholders and the Company.
(c) The Stockholders and the Company Indemnitors who hold a majority hereby authorize the Stockholders' Representative, at its sole discretion, to employ attorneys, accountants and others to assist it in interest the performance of its duties and responsibilities with respect to each Designated Purpose under this Agreement and the Escrow Fund at such time shall be authorized Ancillary Agreements.
(d) The Stockholders and the Company hereby authorize the Stockholders' Representative with respect to each Designated Purpose to (i) interpret and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes construe the provisions of this Agreement and the documents delivered pursuant hereto.
Ancillary Agreements and (cii) All decisions determine, resolve, settle or contest any action, suit, proceeding or arbitration that may arise under this Agreement and actions any Ancillary Agreement with respect to any Designated Purpose in any manner the Stockholders' Representative deems appropriate under the circumstances. Any settlement by the Stockholders’ ' Representative pursuant of an action, suit, proceeding or arbitration with respect to this Agreement any Designated Purpose or the Escrow Agreementany final order or judgment or award of a court or tribunal of competent jurisdiction resulting from an action, including suit, proceeding or arbitration by Buyer or any agreement between other Buyer Indemnified Party against the Stockholders’ ' Representative and Parent relating with respect to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, Designated Purpose shall be binding upon all and enforceable against each of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors Selling Stockholders and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata ShareCompany.
(e) By their adoption Upon the death, disability or resignation of this Agreementthe Stockholders' Representative, the Company Indemnitors a successor Stockholders' Representative shall be deemed appointed by the Selling Stockholders. A successor Stockholders' Representative shall become such upon notice of appointment delivered to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointmentBuyer.
(iif) Parent shall be entitled to rely conclusively on Notwithstanding any provision of this Section 12.12 which defines or limits the instructions and decisions given or made by authority of the Stockholders’ Representative as to any of ' Representative, the matters described in this Section 10.1(e)decisions, and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions acts and instructions of the Stockholders’ ' Representative or the contesting of any actions shall be final, binding and conclusive upon each of the Selling Stockholders and binding the Company; and the Buyer and any other Buyer Indemnified Party may rely upon any such decision, act or instruction of the Stockholders' Representative as being the decision, act or instruction of each and all of the Selling Stockholders and the Company Indemnitors, and no Company Indemnitor shall have any cause without the necessity of action against investigating or determining whether or not such Stockholders' Representative has acted within the scope of the powers given to it under this Agreement. Notices or communications to or from the Stockholders’ ' Representative shall constitute notice to or from each and all of the Selling Stockholders and the Company. The Buyer and any other Buyer Indemnified Party are hereby released and discharged from any Liability to any Selling Stockholder or the Company for any action takenacts done by the Buyer and any other Buyer Indemnified Party in accordance with such decision, decision made act or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ ' Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9Each Stockholder, by the adoption of signing this Agreement, the Company Indemnitors shall be deemed to have designated designates Rand▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇, in the event that Rand▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve or resigns, Jame▇ ▇. ▇▇▇▇) ▇▇ as the be such Stockholders' representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “"Stockholders’ ' Representative”"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf. As among themselves, the Stockholders agree that all decisions shall be made by mutual decision.
(b) In the event UniCapital and Newco shall be entitled to rely upon any communication or writing given or executed by the Stockholders’ ' Representative. All communications or writings to be sent to Stockholders pursuant to this Agreement may be addressed to the Stockholders' Representative dies, becomes unable to perform his and any communication or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative writing so sent shall be deemed notice to be a all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders’ ' Representative for all purposes is authorized to accept deliveries including any notice, on behalf of this Agreement and the documents delivered Stockholders pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ ' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company IndemnitorStockholder, with full power in his, his or her or its name and on his, his or her or its behalf to act according to the terms of this Agreement and in the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions absolute discretion of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors' Representative, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action takenin general to do all things and to perform all acts including, decision made executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) deemed advisable in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions Section 10 of this Section 10.1(e) are independent Agreement. This power of attorney and severable, are irrevocable all authority hereby conferred is granted subject to and coupled with an interestthe interest of such Stockholder and the other Stockholder hereunder and in consideration of the mutual covenants and agreements made herein, and shall be enforceable notwithstanding irrevocable and shall not be terminated by any rights or remedies that act of any Company Indemnitor may have in connection with the transactions contemplated Stockholder, by this Agreement; and
(vi) the provisions operation of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunderlaw, whether pursuant to testamentary disposition, the laws of descent and distribution by such Stockholder's death or otherwiseany other event.
(fd) From and after Notwithstanding the Closingforegoing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Stockholder Representative shall not have by reason promptly inform the other Stockholders of this Agreement a fiduciary relationship in respect all notices received, and of all actions, decisions, notices and exercises of any Company Stockholderrights, power or authority proposed to be done, given or taken by such Stockholder Representative. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated herebyAs between themselves, or in connection therewith, except the Stockholders agree that the Stockholders’ ' Representative shall not be relieved only take action, or refrain from taking action, upon consultation with and the prior approval of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Unicapital Corp)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated Lily Pond Investments, Inc. is hereby following the Closingappointed, including the defense or settlement of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the adoption of this Agreement, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ effective as the representative of the Company Indemnitors for the purposes of this Agreement Effective Time, as agent and the Escrow Agreement representative (in such capacities, the “Stockholders’ Representative”), of the Stockholders and shall have exclusive power and authority, on behalf of the Stockholders, to give and receive notices and communications to or from Parent, Merger Sub and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by the Stockholders individually).
(b) In the event A decision, act, consent or instruction of the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold shall constitute a majority in interest decision of all of the Escrow Fund at such time Stockholders and shall be authorized to final, binding and shall select another representative to fill such vacancy conclusive upon each Stockholder and such substituted representative shall be deemed to be a the Escrow Agent, and Parent may rely upon any decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for all purposes any acts done by them in accordance with such decision, act, consent or instruction of this Agreement and the documents delivered pursuant heretoStockholders’ Representative.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the The Stockholders’ Representative shall not be liable to any Stockholder for any act done or omitted hereunder or under as the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any lossreceive no compensation for its services.
(d) If Lily Pond Investments, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover Inc. incurs any out-of-pocket costs expenses (including, without limitation, any reasonable fees and expenses reasonably incurred by the Stockholders’ Representative of counsel) in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent shall be entitled to rely conclusively on the instructions and decisions given or made by the Stockholders’ Representative capacity as to any of the matters described in this Section 10.1(e), and no party shall have any cause of action against Parent for any action taken by Parent in reliance upon any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud Agreement or willful breach of this Agreement on the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act of the transactions contemplated hereby or omission as thereby, such out-of-pocket expenses shall be paid from, or reimbursed through deduction from, the Stockholders’ RepresentativeHoldback Amount in accordance with Section 2.2(c) hereof and the Escrow Agreement, except for prior to making any liability imposed by Legal Requirements for gross negligence payments or willful misconductdistributions pursuant to Section 2.2(c)(ii) or 2.2(c)(iii) hereof.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following The Key Stockholders (by virtue of their execution of this Agreement) and the Closing, including other Non-Dissenting Stockholders (by virtue of the defense or settlement approval of any claims for which Parent Indemnitees may be entitled to indemnification pursuant to Section 9, by the Merger and the adoption of this Agreement) hereby irrevocably nominate, the Company Indemnitors shall be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ constitute and appoint The Canopy Group, Inc. as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the Company Indemnitors who hold a majority in interest of the Escrow Fund at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow Agreement, including any agreement between the Stockholders’ Representative and Parent relating to the defense or settlement of any claims for which Parent or the Surviving Company may be entitled to indemnification pursuant to Section 9, shall be binding upon all of the Company Indemnitors, agent and no Company Indemnitors shall have the right to object, dissent, protest or otherwise contest any such decision or action.
(d) As between the Company Indemnitors and the Stockholders’ Representative, the Stockholders’ Representative shall not be liable for any act done or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the Company Indemnitors shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitorthe Non-Dissenting Stockholders, with full power in hisof substitution, her or its name and on his, her or its behalf to act according in the name, place and stead of the Non-Dissenting Stockholders for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in its sole discretion, determine to the terms be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement and Agreement, including in connection with any claim for indemnification, compensation or reimbursement under Section 10 or under the Escrow Agreement. The Canopy Group, Inc. hereby accepts its appointment as the Stockholders’ Representative.
(b) The Non-Dissenting Stockholders (by virtue of the approval of the Merger and the adoption of this Agreement) grant to the Stockholders’ Representative hereby accepts full authority to execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (in the name of any or all of the Non-Dissenting Stockholders or otherwise) any and all documents that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such appointment.
(ii) Parent forms and containing such provisions as the Stockholders’ Representative may, in its sole discretion, determine to be appropriate, in performing its duties as contemplated by Section 11.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Contemplated Transactions, each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on the instructions and decisions given any document executed or made purported to be executed on behalf of any Non-Dissenting Stockholder by the Stockholders’ Representative as with respect to any of matters relating to Section 10 or the matters described in this Section 10.1(e)Escrow Agreement, and no party shall have on any cause of action against Parent for any other action taken by Parent in reliance upon or purported to be taken on behalf of any such instructions or decisions;
(iii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given Non-Dissenting Stockholder by the Stockholders’ Representative under this Agreement with respect to matters relating to Section 10 or the Escrow Agreement, except for fraud or willful breach of this Agreement on as fully binding upon such Non-Dissenting Stockholder. Notwithstanding anything to the part of the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (contrary contained in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 10.1 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Company Indemnitor, and any references in this Agreement to the Company Indemnitors shall mean and include the successors to the Company Indemnitor’s rights hereunder, whether pursuant to testamentary disposition11.1, the laws of descent and distribution or otherwise.
(f) From and after the Closing, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
(g) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to any Company Stockholder for any action taken or omitted by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with any act or omission as the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.the
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Stockholders’ Representative. (a) In order to efficiently administer certain matters the transactions contemplated hereby following the Closinghereby, including the defense or and/or settlement of any claims for which Parent Indemnitees the Company Preferred Stockholders may be entitled required to indemnification indemnify the Buyer and/or the Surviving Corporation pursuant to Section 9Article VI hereof, the Company Stockholders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of Merger Consideration, hereby designate the Stockholders’ Representative as their representative, attorney-in-fact and agent.
(a) The Company Stockholders, by the approval of the Merger and adoption of this Agreement and/or their acceptance of Merger Consideration, hereby authorize the Stockholders’ Representative (i) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (ii) to give and receive all notices required to be given under the Agreement, the Company Indemnitors shall and (iii) to take any and all additional action as is contemplated to be deemed to have designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative taken by or on behalf of the Company Indemnitors for Stockholders by the purposes terms of this Agreement and the Escrow Agreement (the “Stockholders’ Representative”)Agreement.
(b) In the event that the Stockholders’ Representative dies, becomes unable to perform his his, her or her its responsibilities hereunder or resigns from such position, the Company Indemnitors Stockholders (acting by the vote of the Company Stockholders who hold immediately prior to the Effective Time held a majority in interest of the Escrow Fund at such time shall be authorized to and outstanding Company Shares held by all Company Stockholders (voting on an as-converted basis) (excluding each Company Stockholder who is an Affiliate of the Buyer) shall select another representative to fill such the vacancy of the representative initially chosen by the Company Stockholders, and such substituted representative shall shall, subject to such representative’s acceptance of such selection in writing, be deemed to be a the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) All decisions and actions by the Stockholders’ Representative pursuant to this Agreement or the Escrow AgreementRepresentative, including without limitation any agreement between the Stockholders’ Representative and Parent the Buyer relating to the defense or settlement of any claims for which Parent or the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Company may be entitled to indemnification Corporation pursuant to Section 9Article VI hereof, shall be binding upon all of the Company IndemnitorsStockholders, and no Company Indemnitors Stockholder shall have the right to object, dissent, protest or otherwise contest any such decision or actionthe same.
(d) As between the Company Indemnitors and the Stockholders’ RepresentativeBy his, the Stockholders’ Representative shall not be liable for any act done her or omitted hereunder or under the Escrow Agreement as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders’ Representative shall be entitled to be indemnified and held harmless by the Company Indemnitors against any loss, liability or expense incurred without bad faith on the part its approval of the Stockholders’ Representative Merger and arising out of or in connection with the acceptance or administration of his/her duties hereunder or under the Escrow Agreement. The Stockholders’ Representative shall be entitled to recover any out-of-pocket costs and expenses reasonably incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) directly from the Company Stockholders in accordance with their Pro Rata Share.
(e) By their adoption of this Agreement, the and/or his, her or its acceptance of Merger Consideration payable at Closing, each Company Indemnitors shall be deemed to have agreedPreferred Stockholder, in addition to the foregoing, agrees that:
(i) the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Company Indemnitor, 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 and the Escrow Agreement. The Stockholders’ Representative hereby accepts such appointment.
(ii) Parent Buyer shall be entitled able to rely conclusively on the instructions and decisions given or made by of the Stockholders’ Representative as to the settlement of any of claims for indemnification by the matters described in this Section 10.1(e)Buyer and/or the Surviving Corporation pursuant to Article VI hereof or any other actions required or permitted to be taken by the Stockholders’ Representative hereunder, and no party shall have any cause of action against Parent the Buyer for any action taken by Parent the Buyer in reliance upon any such the instructions or decisionsdecisions of the Stockholders’ Representative;
(iiiii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon all of the Company Indemnitors, Stockholders and no Company Indemnitor Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement or the Escrow Agreement, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
(iii) it shall indemnify and hold harmless the Stockholders’ Representative (based on its Pro Rata Share) from and against any and all losses, liabilities or expenses (including the part reasonable fees and expenses of counsel) that may be imposed upon, incurred by or asserted against the Stockholders’ Representative in any way relating to or arising out of the Stockholders’ Representative’s action or failures to take action pursuant to this Agreement or the Escrow Agreement, other than acts or omissions resulting from or arising out of fraud, willful misconduct or bad faith by the Stockholders’ Representative;
(iv) the Stockholders’ Representative may use the Expense Reserve to satisfy costs, expenses and liabilities of the Stockholders’ Representative (in his capacity as the Stockholders’ Representative) in connection with matters related to this Agreement and the Company Ancillary Agreements;
(v) the provisions of this Section 10.1(e) 1.14 are independent and severable, are irrevocable and coupled with an interest, interest and shall be enforceable notwithstanding any rights or remedies that any Company Indemnitor Stockholder may have in connection with the transactions contemplated by this Agreement; and
(viv) the provisions of this Section 10.1 1.14 shall be binding upon the executors, heirs, legal representatives, personal representatives, successors and permitted assigns of each Company IndemnitorStockholder, and any references in this Agreement to a Company Stockholder or the Company Indemnitors Stockholders shall mean and include the successors to the Company IndemnitorStockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(fe) From and after Notwithstanding anything to the Closingcontrary herein contained, Parent shall cause the Surviving Company to provide the Stockholders’ Representative, at his expense, with reasonable access to information about the Surviving Company and the reasonable assistance of the officers and employees of the Surviving Company for purposes of performing his duties and exercising his rights under this Agreement.
Representative (gsolely in its capacity as such) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Company Stockholder. The Stockholders’ Representative shall not be liable to the Company Stockholders, the Buyer, Transitory Sub, the Company, the Surviving Corporation or to any Company Stockholder for of their respective Affiliates, with respect to any action taken or omitted to be taken by it hereunder or under any other document contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability imposed by Legal Requirements for gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any Company Stockholder for any apportionment or distribution of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to which payment was due, but not made, shall be to recover from the other Company Stockholders any payment in excess of the amount to which they are determined to have been entitled. Each Company Stockholder acknowledges and agrees that the Stockholders’ Representative shall not be obligated to take any actions and shall be entitled to take such actions as the Stockholders’ Representative deems appropriate in its sole discretion. Each Company Stockholder further agrees to indemnify and hold the Stockholders’ Representative harmless from and against any loss, liability or expense arising in connection with this Agreement or any act other agreement, instrument and document contemplated hereby or executed pursuant hereto, or the transactions contemplated hereby and thereby, unless such action or omission as results from or arises out of fraud or willful misconduct on the part of the Stockholders’ Representative, except for any liability imposed by Legal Requirements for gross negligence or willful misconduct.
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Sources: Merger Agreement (I Many Inc)