Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing. 11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement. 11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement. 11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Stockholders’ Representative. 11.1 By virtue (a) The Stockholders Representative shall be the agent and attorney-in-fact for each of the adoption of Stockholders, the Merger Agreement RSU Holders and the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and Optionholders under this Agreement and the appointment other agreements contemplated hereby in accordance with the terms of ▇▇▇▇ ▇▇▇▇▇ as this Section 10.12. In the Stockholders’ event of the resignation, death or incapacity of the Stockholders Representative, to give and receive notices and communications, to authorize delivery a successor Stockholders Representative reasonably satisfactory to Parent of Escrow Sharesshall thereafter be appointed by an instrument in writing signed by Parent and such successor Stockholders Representative.
(b) The Stockholders Representative is hereby authorized and empowered to act for, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises on behalf of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take any or all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative , the RSU Holders and the Optionholders (with full power of substitution in the premises) in connection with such matters as are reasonably necessary for the accomplishment consummation and administration of the foregoing.
11.2 Any successor Stockholders’ transactions contemplated in this Agreement, the Escrow Agreement and the other agreements contemplated hereby and thereby, including executing and delivering all agreements, amendments, certificates, receipts, consents, elections, instructions and other documents contemplated by, or deemed by the Stockholders Representative to be necessary or desirable in connection with this Agreement, the Escrow Agreement, the other agreements contemplated hereby and thereby and the transactions contemplated herein or therein. Parent and Merger Sub shall be entitled to rely on such appointment and to treat the Stockholders Representative as the duly appointed pursuant attorney-in-fact of each Stockholder, RSU Holder and Optionholder. Notices given to Section 10.1(l) the Stockholders Representative in accordance with the provisions of the Merger this Agreement shall automatically, without any further action or notice, become constitute notice to the Stockholders’ Representative , RSU Holders and the Optionholders for all purposes of under this Agreement.
11.3 (c) The Company appointment of the Stockholders have agreed Representative is an agency coupled with an interest and is irrevocable and any action taken by the Stockholders Representative pursuant to pay certain out-of-pocket the authority granted in this Section 10.12 shall be effective and absolutely binding on each Stockholder, RSU Holder and Optionholder notwithstanding any contrary action of or direction from such Stockholder, RSU Holder or Optionholder, except for actions or omissions of the Stockholders Representative constituting willful misconduct or gross negligence. The death or incapacity, or dissolution or other termination of existence, of any Stockholder, RSU Holder or Optionholder shall not terminate the authority and agency of the Stockholders Representative. Parent, Merger Sub and any other party to any document contemplated by this Agreement in dealing with the Stockholders Representative may conclusively and absolutely rely, without inquiry, upon any act of the Stockholders Representative as the act of the Stockholder, RSU Holder or Optionholder.
(d) The Stockholders Representative shall not be liable to any Stockholder, RSU Holder, Optionholder or to any other Person (other than Parent or Merger Sub), with respect to any action taken or omitted to be taken by the Stockholders Representative in its role as Stockholders Representative under or in connection with this Agreement, unless such action or omission results from or arises out of willful misconduct or gross negligence on the part of the Stockholders Representative, and the Stockholders Representative shall not be liable to any Stockholder, RSU Holder or Optionholder in the event that, in the exercise of his or its reasonable judgment, the Stockholders Representative believes there will not be adequate resources available to cover potential costs and expenses to contest a claim made by Parent or Merger Sub.
(e) The Stockholders Representative may act pursuant to the advice of counsel with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted by it in good faith in accordance with such advice. The Stockholders Representative shall be entitled to rely upon any Order, certification, demand, notice, instrument or other writing delivered to it hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreementservice thereof. The Stockholders’ Stockholders Representative may from time act in reliance upon any instrument or signature believed by it to time deliver claims be genuine and may assume that the Person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. The Stockholders Representative may conclusively presume that the undersigned representative of any party hereto which is an entity other than a natural person has full power and authority to instruct the Stockholders Representative on behalf of that party unless written notice to the Escrow Agent certifying and itemizing in reasonable detail any amounts contrary is delivered to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementStockholders Representative.
11.4 At the time (f) Upon any disbursement of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 amounts from the Indemnity Escrow Fund by delivering Account to the Stockholders, the Optionholders and the RSU Holders or the payment of any Earn-Out Consideration to Stockholders, the Optionholders and the RSU Holders, the Stockholders Representative shall receive reimbursement from, and be indemnified from, the Earn-Out Consideration or the amounts disbursed from the Indemnity Escrow Account, as applicable, for any and all expenses, charges and liabilities, including reasonable attorneys’ fees, incurred by the Stockholders Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal in the performance or discharge of its duties pursuant to the aggregate amount of such claimsthis Section 10.12.
Appears in 3 contracts
Sources: Merger Agreement (Novelis Inc.), Merger Agreement (Aleris Corp), Merger Agreement (Novelis Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of (a) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby appointed as the Stockholders’ Representative (the “Stockholders’ Representative, ”) with the following authority: (i) to give and receive notices and communications, (ii) to authorize delivery take any and all actions relating to Parent of Escrow Sharesclaims to indemnify, Escrow Cash hold harmless or other property from the Escrow Fundreimburse any Indemnitee hereunder, to object to such deliveries, (iii) to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(sarbitrators with respect to, such claims, (iv) to take all other actions contemplated for the Stockholders’ Representative in this Agreement, (v) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents and agreements contemplated by this Agreement, (vi) to make all elections or decisions contemplated by this Agreement and any other documents and agreements contemplated by this Agreement, (vii) to amend, modify or waive any agreements to which the Stockholders’ Representative is a party, (viii) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Stockholders’ Representative in complying with the Stockholders’ Representative’s duties and obligations, (ix) to receive and distribute the proceeds of the Collected Landlord Receivables, the Holdback Funds and any Unused Retention Amount, (x) to use the Holdback Funds to pay its out-of-pocket expenses in connection with the transactions contemplated by this Agreement and as a source of funds with respect to claims of Indemnitees hereunderthe Company’s and the Stockholders’ indemnification obligations under this Agreement, (xi) to enter into the Paying Agent Agreement, and (xii) to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 . Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further decision or action or notice, become by the Stockholders’ Representative hereunder, including any agreement between the Stockholders’ Representative and Parent relating to the defense, payment or settlement of any claims to indemnify, hold harmless or reimburse any Indemnitee hereunder, shall be final, binding and conclusive. Parent and the Surviving Corporation shall be entitled to rely upon all actions of the Stockholders’ Representative in his capacity as Stockholders’ Representative whether or not express authority is granted pursuant to this Section 9.5.
(b) The Stockholders’ Representative shall distribute all cash proceeds received with respect to the Collected Landlord Receivables and any Unused Retention Amount within five (5) Business Days after receipt of any cash with respect thereto; provided, however, that the Stockholders’ Representative shall have the right to utilize a portion of such amounts to replenish any amounts previously expended from the Holdback Funds and to delay such distribution for such period as the Stockholders’ Representative, in its sole discretion, deems prudent in light of Indemnity Matters that have been asserted and remain unresolved on the scheduled distribution date. The Stockholders’ Representative shall determine in good faith when to distribute the remainder of the Holdback Funds, including any Collected Landlord Receivables or Unused Retention Amount used to replenish the Holdback Funds, to the Company’s stockholders, which amount shall be distributed no later than April 15, 2010, other than any amounts necessary to cover any Indemnification Claims which have been asserted and have not been paid as of such date. Any distribution of funds (other than with respect to the reimbursement of Stockholders’ Representative’s expenses from the Holdback Funds) shall be made pro rata to the Company’s stockholders based upon their ownership of Company Common Stock outstanding as of the Effective Time; provided that any funds to be made to a stockholder of the Company who has not properly executed and delivered a Letter of Transmittal to the Paying Agent or the Surviving Corporation shall be paid to the Surviving Corporation to be held on behalf of such stockholder of the Company in the same manner as any funds released by the Paying Agent to the Surviving Corporation pursuant to Section 2.4(f) above.
(c) If the Stockholders’ Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities, then the remaining Person(s) serving as the Stockholders’ Representative shall, within 30 days after such death or disability, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall, collectively with such remaining Person(s), become the “Stockholders’ Representative” for all purposes hereunder. If for any reason there is no Stockholders’ Representative at any time, all references herein to the Stockholders’ Representative shall be deemed to refer to such Person approved by the trustees of the RG Stock Trust and the Voting Trust who is reasonably satisfactory to Parent as such trusts are more specifically described in Section 9.5 of the Company Disclosure Schedule.
(d) The Stockholders’ Representative shall not be liable to the Stockholders or Option holders of the Company for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith.
(e) The Stockholders’ Representative shall be entitled to rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to him, her or it hereunder without being required to investigate the validity or accuracy 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 for anything done, omitted or suffered in good faith by the Stockholders’ Representative based on such advice, the Stockholders’ Representative shall not be liable to the Stockholders or Option holders of the Company.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs (f) No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for its services.
(g) All expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims shall constitute Company Transaction Expenses to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash extent paid by the Escrow Agent pursuant to Section 8.1 Company or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, Surviving Corporation after the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsJuly End Date.
Appears in 3 contracts
Sources: Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇▇▇ ▇▇▇▇▇ has been appointed by the Stockholders as the Stockholders’ Representativeagent and attorney-in-fact for each Stockholder, (i) to give and receive notices and communicationscommunications to the Purchaser for any purpose under this Agreement and the Additional Agreements, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, (ii) to agree to, negotiate, enter into settlements and compromises of, of and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims any disputes arising under or related to this Agreement, (iii) to act on behalf of Indemnitees hereunderStockholders 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 reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant . Such agency may be changed by the Stockholders from time to Section 10.1(ltime upon no less than twenty (20) of days prior written notice to the Merger Agreement shall automaticallyPurchaser; provided, without any further action or noticehowever, become that the Stockholders’ Representative may not be removed unless holders of at least 51% of all of the Company Common Stock 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 at least 51% of all of the Company Common Stock outstanding immediately prior to the Effective Time. Any removal or change of the Stockholders’ Representative shall not be effective until written notice is delivered to the Purchaser. No bond shall be required of 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 while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of this Agreement.
11.3 all of the Stockholders of the Company and shall be final, binding and conclusive upon each of the Stockholders. The Company Stockholders have agreed to pay certain out-of-pocket costs shall severally indemnify the Stockholders’ Representative and expenses hold her harmless against any loss, liability, or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and to indemnify, defend and hold harmless arising out of or in connection with the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 acceptance or administration of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementher duties hereunder.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Merger Agreement (Vincera Pharma, Inc.), Merger Agreement (LifeSci Acquisition Corp.)
Stockholders’ Representative. 11.1 By virtue (i) Each holder of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Series B Preferred Stock hereby irrevocably constitutes and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ appoints Ares as the sole and exclusive attorney-in-fact and proxy of such holder of Series B Preferred Stock (the “Stockholders’ Representative”), with full power of substitution and resubstitution, to give and receive notices and communications, exercise or abstain from exercising the rights granted to authorize delivery to Parent the holders of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution Series B Preferred Stock pursuant to this Section 10 6 (other than any amendments that are either (i) adversely disproportionate to holders of the Merger Agreement and comply with orders Series B Preferred Stock as compared to other holders of courts and awards the Series B Preferred Stock or (ii) adversely affect the definition of Arbitrator(sCash Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 7(a)(ii)) with respect to claims of Indemnitees hereunder, and to take all actions necessary the fullest extent permitted by law. Any action taken or appropriate in the reasonable judgment of not taken by the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to this Section 10.1(l6(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 Merger Agreement Series 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 automaticallybe 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, without any further action bankruptcy, death or notice, become the Stockholders’ Representative for all purposes incapacity of each holder of Series B Preferred Stock. The provisions of this Agreement.
11.3 The Company Stockholders have agreed Section 6(b) shall terminate with respect to pay certain out-of-pocket costs and expenses a holder of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementSeries B Preferred Stock once such holder no longer owns any Series B Preferred Stock. The Stockholders’ Representative may from time appoint one or more successor representatives to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2Representative, and subject to the retention approval of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect holders of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims a majority of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering Series B Preferred Stock then outstanding.
(ii) Each holder of Series B Preferred Stock hereby irrevocably delegates all power and authority to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow 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 Series B Preferred Stock as compared to other holders of the Series B Preferred Stock or (ii) adversely affect the definition of Cash equal Dividend Rate or Accumulated Dividend Rate or the redemption required by Section 7(a)(ii)), including the granting of any waivers or the exercise of any consent, approval or voting rights or powers on behalf of such holder.
(iii) The Stockholders’ Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the aggregate amount holders of such claimsSeries 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 each and every one of the holders of Series B Preferred Stock. The Corporation hereby agrees that the Stockholders’ Representative shall not, in its capacity as such, have any liability to the Corporation or any 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. 11.1 By virtue of the adoption (a) Upon approval of the Merger and this Agreement by the Escrow Contributors shall Stockholders, each Stockholder will be deemed to have approved irrevocably appointed ComVest Investment Partners II LLC, as its, his or her true and lawful attorney-in-fact and agent (the “Stockholders’ Representative”), 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 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 provisions set forth referred to in this Agreement, including the Merger Agreement 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 the 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) The appointment of ▇▇▇▇ ▇▇▇▇▇ the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, Merger Subsidiary and Surviving Corporation and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. Any notices required to be made or delivered to the Company or any of the Stockholders shall be made to the Stockholders’ Representative and shall discharge in full all notice requirements, as applicable, to such Stockholder and/or the Company with respect thereto. By their appointment of the Stockholders’ Representative, the Stockholders thereby confirm all that the Stockholders’ Representative shall do or cause to give and receive notices and communications, to authorize delivery to Parent be done by virtue of Escrow Shares, Escrow Cash or other property from his appointment as the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 representatives of the Merger Stockholders hereunder. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment 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 responsible to any Stockholder for any damages which the Stockholders may suffer by the performance of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of Representative’s duties under this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses , other than damages arising from willful violation of applicable law or gross negligence in the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 performance of the Merger such duties under this Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying shall not have any duties or responsibilities except those expressly set forth in this Agreement, and itemizing in reasonable detail any amounts to which no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementRepresentative.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Merger Agreement (CDC Corp), Merger Agreement (CDC Software CORP)
Stockholders’ Representative. 11.1 By virtue (a) To administer efficiently the rights and obligations of the adoption former stockholders of the Merger Agreement Company under this Agreement, the Escrow Contributors shall be deemed to former stockholders of the Company have approved the indemnification provisions set forth in the Merger Agreement designated and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ appointed Mr. Bart A. M. van Hedel, as the Stockholders’ Representative (the “Stockholders’ Representative”), to give serve as their agent and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from attorney in fact for the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(slimited purposes set forth in this Agreement.
(b) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of Mr. Bart A. M. van Hedel shall serve as the Stockholders’ Representative for until such person resigns or is otherwise unable or unwilling to serve. If the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative shall resign or otherwise become unable or unwilling to serve, then a successor representative shall be appointed pursuant to Section 10.1(l) by the departing Stockholders’ Representative or if such person is not available, by majority vote of the Merger Agreement former stockholders of the Company. The substitute Stockholders’ Representative shall automatically, without any further action or notice, become provide prompt written notice to the Parent and the former stockholders of the Company of such change and such substituted representative shall then be deemed to be the sole Stockholders’ Representative for all purposes of this 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 former stockholders of the Company of the change in Stockholders’ Representative.
11.3 (c) The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses duties of the Stockholders’ Representative shall be only those which are specifically provided in this Agreement and to indemnifythe agreement appointing the Stockholders’ Representative, defend and hold harmless the Stockholders’ Representative shall not be personally liable for actions or decisions taken or made in good faith in managing or discharging his duties and his affiliates responsibilities in accordance with the terms hereof and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of thereof.
(d) To the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which extent that the Stockholders’ Representative incurs costs or his affiliates or their respective Representatives expenses in the exercise of its office, any amounts remaining in the Stock Escrow subsequent to the Claims Period and that are entitled pursuant not subject to Section 10.1 any claim that has been made prior to the end of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash Claims Period shall be used first to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of reimburse the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering for such costs and expenses and then disbursed to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount former holders of such claimsCompany Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Sand Hill It Security Acquisition Corp), Merger Agreement (Sand Hill It Security Acquisition Corp)
Stockholders’ Representative. 11.1 By virtue (a) Stockholders’ Representative is hereby designated to serve as the representative of the adoption of Company Stockholders and Vested Option Holders with respect to the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions matters expressly set forth in Section 9.16(b) and with respect to the Merger Agreement and matters otherwise set forth in this Agreement and to be performed by Stockholders’ Representative. Should the appointment initial Stockholders’ Representative resign or be unable to serve, Company Stockholders holding immediately prior to the Closing more than thirty- five percent (35%) of ▇▇▇▇ ▇▇▇▇▇ the Common Stock on a fully diluted basis shall be entitled to designate a single substitute agent (subject to Parent’s approval, not to be unreasonably withheld) to serve as the successor Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement who shall automatically, without any further action or notice, become the be Stockholders’ Representative for all purposes thereafter. If more than one proposed substitute Stockholders’ Representative is approved by more than thirty-five percent (35%) of the Common Stock on a fully diluted basis, then the proposed replacement with the highest approval percentage shall be the substitute Stockholders’ Representative. The appointment of such successor, in any case, shall be effective on the date of Stockholders’ Representative’s resignation or incapacity or, if later, the date on which such successor is appointed.
(b) Each Company Stockholder, by his, her or its approval of the Merger and the submission of a Letter of Transmittal, and each Vested Option Holder, by his, her or its acceptance of any portion of the Merger Consideration, ratifies the appointment of Stockholders’ Representative as the agent, proxy and attorney-in-fact for such Company Stockholder or Vested Option Holder for all purposes of this Agreement.
11.3 The , including the full power and authority on such Company Stockholders have agreed Stockholder’s or Vested Option Holder’s behalf: (i) to consummate the transactions contemplated herein and any post-Closing matters, including making decisions and taking any action with respect to the matters set forth in Section 2.9; (ii) to pay certain out-of-pocket costs such Company Stockholder’s or Vested Option Holder’s expenses incurred in connection with the negotiation and expenses performance of this Agreement (whether incurred on or after the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 date of the Merger this Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.);
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of term “Stockholders’ Representative” shall mean Global Acquisition LLC, or any Person appointed as a successor Stockholders’ Representative pursuant to this Section 10.6. Global Acquisition LLC hereby accepts its appointment as the Merger Agreement initial Stockholders’ Representative. Effective upon the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as Closing, without any further action by any other Person, the Stockholders’ RepresentativeRepresentative shall be appointed and constituted in respect of each Indemnifying Party, as his, her or its agent, to act in his, her or its name, place and stead, as such Indemnifying Party’s attorney-in-fact, to give and receive notices and communicationscommunications in connection with this Agreement and related matters, including in connection with Claims for indemnification under this Article 10 and Article 7 and to authorize delivery determine the Closing Cash Consideration pursuant to Parent of Escrow SharesSection 3.5 and the Final Cash Consideration pursuant to Section 3.6, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, and to agree to, negotiate, and enter into settlements settlements, adjustments and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereunderto, such Claims, and to take all other actions that are either (i) necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Indemnifying Parties from time to Section 10.1(ltime upon not less than ten (10) of the Merger Agreement shall automaticallydays prior written notice to Parent; provided, without any further action or notice, become that the Stockholders’ Representative for all purposes may not be removed unless the Payment Parties that are entitled to a majority of this Agreement.
11.3 The Company Stockholders have agreed the funds remaining in the Escrow Fund agree in writing to pay certain out-of-pocket costs such removal and expenses to the identity of the substituted agent. A vacancy in the position of the Stockholders’ Representative and may be filled by the Payment Parties that are entitled to indemnify, defend and hold harmless a majority of the funds remaining in the Escrow Fund. Notices or communications to or from the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant shall constitute notice to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsIndemnifying Parties.
Appears in 2 contracts
Sources: Merger Agreement (GXS Worldwide, Inc.), Merger Agreement (Open Text Corp)
Stockholders’ Representative. 11.1 By virtue (a) The Stockholders hereby appoint the Stockholders' Representative to act as the sole agent of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth Stockholders in the Merger Agreement and connection with this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as Escrow Agreement with the powers and duties described herein and under the Escrow Agreement.
(b) The Stockholders hereby grant the Stockholders’ Representative, ' Representative the authority to: (i) dispute or to give and receive notices and communications, refrain from disputing any objection by Acquisition Sub to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution Closing Working Capital Statement pursuant to Section 10 2.6(b) of this Agreement or any claim made by Acquisition Sub under the Merger Escrow Agreement or Article VIII of this Agreement; (ii) negotiate and compromise any objection or dispute which may arise under, and to exercise or refrain from exercising remedies available under, Section 2.6(b) or Article VIII of this Agreement or the Escrow Agreement and comply with orders of courts and awards of Arbitrator(s) to sign any releases or other documents with respect to claims such objection, dispute or remedy, (iii) waive any condition contained in Section 2.6(b), Section 7.2 or Article VIII of Indemnitees hereunderthis 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 to take all actions (v) do such things and refrain from doing such things as shall be necessary or appropriate in to carry out the reasonable judgment provisions of this Agreement or of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Escrow Agreement. The Stockholders’ ' Representative shall be authorized to act, notwithstanding any dispute or disagreement among the Stockholders, and Acquisition Sub shall be entitled to rely on any and all action taken by the Stockholders' Representative under this Agreement or under the Escrow Agreement without any liability to, or obligation to inquire of, any of the Stockholders. The Stockholders' Representative may resign at any time, effective upon the designation, 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 the 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 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 designate a replacement Stockholders' Representative, in which case, notice of such removal and replacement shall be given to time deliver claims Acquisition Sub and to the Escrow Agent certifying and itemizing Agent. The Stockholders' Representative while acting strictly in reasonable detail any amounts to which the his/her capacity as Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash ' Representative, shall have no liability whatsoever to any Escrow Contributors pursuant to Section 8.1 Stockholder other than for gross negligence or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims willful misconduct. The authority of the Stockholders’ ' Representative submitted pursuant provided in this Agreement shall be effective until the rights and obligations of the Stockholders under this Agreement terminate by virtue of the termination of any and all rights and obligations of the Stockholders to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsAcquisition Sub under this Agreement.
Appears in 2 contracts
Sources: Share Exchange Agreement (Eventures Group Inc), Share Exchange Agreement (Eventures Group Inc)
Stockholders’ Representative. 11.1 By virtue of the adoption (a) Upon approval of the Merger and this Agreement by the Escrow Contributors shall Stockholders, each Stockholder will be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as irrevocably appointed the Stockholders’ Representative, to give as his true and receive notices lawful attorney-in-fact and communicationsagent (the “Stockholders’ Representative”), with full power of substitution or resubstitution, to authorize delivery to Parent act solely and exclusively on behalf of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) Stockholder with respect to claims of Indemnitees hereunderthe transactions contemplated by this Agreement, including the Merger, and to take act on behalf of such Stockholder in any litigation or arbitration involving this Agreement, to do or refrain from doing all actions such further acts and things, and to execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the reasonable judgment 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) The appointment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the shall be deemed coupled with an interest and shall be irrevocable, and Buyer, Merger Agreement shall automaticallySubsidiary and Surviving Corporation and any other person may conclusively and absolutely rely, without inquiry, upon any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and in all matters referred to indemnify, defend and hold harmless herein. Any notices required to be made or delivered to the Company or any of the Stockholders shall be made to the Stockholders’ Representative and his affiliates and shall discharge in full all notice requirements, as applicable, to such Stockholder and/or the Company with respect thereto. By their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 appointment of the Merger 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 responsible to any Stockholder for any damages which the Stockholders may suffer by the performance of the Stockholders’ Representative’s duties under this Agreement, other than damages arising from willful violation of applicable law or gross negligence in the performance of such duties under this Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying shall not have any duties or responsibilities except those expressly set forth in this Agreement, and itemizing in reasonable detail any amounts to which no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementRepresentative.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Merger Agreement (CDC Corp), Merger Agreement (CDC Software CORP)
Stockholders’ Representative. 11.1 By (a) Each Participating Holder, by virtue of the adoption of this Agreement and approval of the Merger by the 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 Contributors 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 approved, and shall be bound by, any and all actions taken by the indemnification provisions set forth in the Merger Agreement and Stockholders’ Representative on their behalf under or otherwise relating to this Agreement and the appointment other documents contemplated hereby and the transactions contemplated hereunder and thereunder as if such actions were expressly ratified and confirmed by each of ▇▇▇▇ ▇▇▇▇▇ as 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 give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash be the executor or other property from representative of such Stockholders’ Representative’s estate) and Parent and Merger Sub shall be notified promptly of such appointment by the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 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 Merger original Stockholders’ Representative under this Agreement and comply with orders of courts (ii) Parent and awards of Arbitrator(sMerger 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) with respect Parent and Merger Sub shall be entitled to claims of Indemnitees hereunderrely upon any actions, and to take all actions necessary communication or appropriate in the reasonable judgment of writings taken, given or executed by the Stockholders’ Representative for the accomplishment on behalf of the foregoing.
11.2 Any successor Stockholders’ Representative appointed Participating Holders. After the Closing, all communications or writings to be sent to the Participating Holders pursuant to Section 10.1(l) of the Merger this Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed may be addressed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and any communication or writing so sent shall be deemed notice to 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 is authorized to accept deliveries, including any notice, on behalf of each holder of Company Stock pursuant hereto.
(c) The Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Participating Holder, with full power of substitution in such holder’s name and on such holder’s behalf to act according to the terms of this Agreement and the other documents contemplated hereby in the absolute discretion of the 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 agrees to serve as the Stockholders’ Representative in accordance with the applicable terms hereof and to be bound by such terms.
(e) The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement, the Escrow 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”), the Stockholders’ Representative and the Company, except in the event of liability directly resulting from the Stockholders’ Representative’s 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 from and his affiliates against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their respective Representatives for certain lossesstaffs and all expense of document location, liabilities duplication and expenses pursuant shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement, the Escrow Agreement and the Acquiom Payments Agreement, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to Section 10.1 have been directly caused by the gross negligence or willful misconduct of the Merger Agreement. The Stockholders’ Representative, the Stockholders’ Representative may from time to time deliver claims 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 such Representative Losses may be recovered by the Stockholders’ Representative (i) first, 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 Agent certifying 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 itemizing (iii) third, solely to the extent the remaining funds in reasonable detail 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 amounts other future contingent consideration, this does not (i) require the Stockholders’ Representative to which 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 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 his affiliates or their respective Representatives are entitled pursuant to Section 10.1 the termination of the Merger this Agreement.
11.4 At (f) Upon the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent IndemniteesClosing, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering Company will wire to the Stockholders’ Representative and/or his designees Escrow Shares having 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 the Stockholders’ Representative any ownership right that they 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 Conversion Price and/or Escrow Cash subject to the payment provisions in Section 1.9 in the case of payments to holders of Company 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 aggregate 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 treated as having been received and voluntarily set aside by the Participating Holders at the time of Closing and shall be subject to wage withholding as if paid to such claimsParticipating 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 nor the Payments Administrator shall be responsible for any wage withholding or related calculations or determinations.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Stockholders’ Representative. 11.1 By virtue (a) Upon approval of this Agreement by the stockholders of the adoption Company in accordance with the DGCL and the Organizational Documents of the Merger Agreement Company and the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement execution and delivery of this Agreement by the Company, Buyer and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give each Securityholder without any further action thereby, irrevocably hereby consents, designates and receive notices appoints the Stockholders’ Representative, including any replacement of the Stockholders’ Representative, as such Securityholder’s agent and communicationsattorney-in-fact, with full power and authority in the name of and for and on behalf of such Securityholder, to authorize delivery serve as the Stockholders’ Representative under this Agreement and to Parent of Escrow Shares, Escrow Cash exercise the power and authority granted to or other property from required by the Stockholders’ Representative hereunder or under the Escrow FundAgreement 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 object act on each Securityholder’s behalf in any dispute, litigation or arbitration involving this Agreement or the Escrow Agreement or any document delivered to the Stockholders’ Representative in such deliveries, capacity pursuant hereto or thereto and to agree to, negotiate, enter into settlements do or refrain from doing all such further acts and compromises ofthings, and demand dispute resolution pursuant to Section 10 of execute all such documents as the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions Stockholders’ Representative shall deem necessary or appropriate in connection with the reasonable judgment transactions contemplated by this Agreement and the Ancillary Agreements. All decisions, acts, consents or instructions of the Stockholders’ Representative for may be relied upon by any third party as being the accomplishment decision, act, consent or instruction of every Securityholder and shall be final conclusive and binding upon each Securityholder. In the event of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallydeath, without any further action physical or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses 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 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 the Securityholders, 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 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 and the Securityholders, neither 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 liable for any 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 its duties hereunder.
(c) Such Representative Expenses may be recovered first from the Representative Fund, second, from any distribution of the Escrow Fund otherwise distributable to the Securityholders at the time of distribution, and third, directly from the Securityholders based on their respective Pro Rata Shares. The Securityholders acknowledge that the Stockholders’ Representative and his affiliates and their respective Representatives for certain lossesshall 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, liabilities and expenses pursuant to Section 10.1 rights, duties or privileges or administration of the Merger AgreementStockholders’ Representative’s duties. The Stockholders’ Representative may will hold the Representative Fund as agent and for the benefit of the Securityholders in a segregated client account, separate from time its corporate funds and will not voluntarily make such funds available to time deliver claims to its creditors in the Escrow Agent certifying event of bankruptcy. The Stockholders’ Representative is not providing any investment supervision, recommendations or advice. The Stockholders’ Representative shall have no responsibility or liability 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 itemizing has no tax reporting or income distribution obligations hereunder. The Representative Fund will be held or disbursed, in reasonable detail any amounts to which 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 be permitted to make any disbursements of 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, the Stockholders’ Representative shall be permitted to either (i) distribute the Representative Fund Consideration to the Securityholders or his affiliates or their respective Representatives are entitled pursuant (ii) deposit the Representative Fund with the Exchange Agent, if then still engaged to Section 10.1 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 shall provide Buyer with written notice setting forth the remaining balance of the Merger Agreement.
11.4 At Representative Fund and the time amount of the distribution of Representative Fund Consideration payable to each Securityholder, including each Employee Option Holder and Former Employee Option Holder (without accounting for any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject reduction to the retention Representative Fund Consideration for any Post-Closing Related Payroll Taxes). Within fifteen (15) days of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims Buyer’s receipt of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to Representative’s written notice, Buyer shall provide the Stockholders’ Representative and/or his designees Escrow Shares having with written notice setting forth: (A) the amount of Post-Closing Related Payroll Taxes to be withheld from the Representative Fund and paid to Buyer (or any Acquired Company designated by Buyer) on the Representative Fund Release Date, (B) the portion of the Representative Fund Consideration payable to each Employee Option Holder who remains an aggregate Agreement Conversion Price and/or Escrow Cash equal employee of any Acquired Company as of the date of such notice, and (C) the amount of Tax withholding attributable to the aggregate 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’ Representative 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 claimswritten notice, such amount to be for the benefit and account of Buyer and the Acquired Companies, (y) deposit with Buyer (or any Acquired Companies designated by 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 any 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. 11.1 By virtue (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 Merger Agreement the Escrow Contributors Company Indemnitors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of designated ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the representative of the Company Indemnitors for the purposes of this Agreement and the Escrow Agreement (the “Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from ”).
(b) In the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of event the Stockholders’ Representative for dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, the accomplishment Company Indemnitors who hold a majority in interest of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant Escrow Fund at such time shall be authorized to Section 10.1(l) of the Merger Agreement and shall automatically, without any further action or notice, become the select another representative to fill such vacancy and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto.
11.3 (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 Stockholders have agreed 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 pay certain recover any out-of-pocket costs and expenses of reasonably incurred by the Stockholders’ Representative and to indemnify, defend and hold harmless in connection with actions taken by the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 the terms of this Agreement or the Merger 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 may from time hereby accepts such appointment.
(ii) Parent shall be entitled to time deliver claims to rely conclusively on the Escrow Agent certifying instructions and itemizing in reasonable detail any amounts to which decisions given or made by the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant as to Section 10.1 any of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to matters described in this Section 8.1 or Section 8.210.1(e), and subject to the retention no party shall have any cause of Escrow Shares and/or Escrow Cash action against Parent for any action taken by the Escrow Agent pursuant to Section 8.1 Parent in reliance upon any such instructions or Section 8.2decisions;
(iii) all actions, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions and instructions of the Stockholders’ Representative submitted pursuant to Section 11.3 from shall be conclusive and binding upon all of the Escrow Fund by delivering to Company Indemnitors, and no Company Indemnitor shall have any cause of action against the Stockholders’ Representative and/or 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 designees Escrow Shares having 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 aggregate 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 Conversion Price and/or Escrow Cash equal to the aggregate 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 of 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 claimsactions 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. 11.1 By virtue of (a) The Company hereby appoints, and the adoption of the Merger Agreement the Escrow Contributors Company's stockholders shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as appoint, the Stockholders’ ' Representative, with full and unqualified power to give and receive notices and communicationsdelegate to one or more Persons the authority granted to him hereunder, to authorize delivery to Parent act as each of Escrow Sharestheir agent and attorney-in-fact, Escrow Cash or other property from the Escrow Fundwith full power of substitution, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary called for by this Section 7 and the Escrow Agreement and, if applicable, the 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) The Stockholders' Representative shall have no liability whatsoever to any existing or appropriate former stockholder of the Company or to any other Person arising out of the matters contemplated by this Section 7 or the Escrow Agreement or, if applicable, the Tax Escrow Agreement, except only to the extent of any Loss caused exclusively by the Stockholders' Representative's willful misconduct or bad faith. In any event, any such liability shall be limited to direct damages resulting from such conduct and in no event shall the reasonable judgment Stockholders' Representative be liable for special, incidental or consequential damages incurred or suffered by any Person. The Stockholders' Representative shall incur no liability to any existing or former stockholder of the Company or 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 duly authorized. The Stockholders' Representative may, in all questions arising under the Escrow Agreement and, if applicable, the Tax Escrow Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders' Representative based on such advice, the Stockholders' Representative shall not be liable to any existing or former stockholder of the Company or to any other Person.
(c) In the event of the death or permanent disability of the Stockholders’ ' Representative, or his resignation, a successor Stockholders' Representative for the accomplishment shall be appointed by a majority vote of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(lholders (other than Siemens and its subsidiaries) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses outstanding capital stock of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims Company immediately prior to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative Effective Time, with each such stockholder (or his affiliates or their respective Representatives are entitled pursuant her successors or assigns) to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash be given a vote equal to the aggregate amount number of votes represented by the shares of capital stock of the Company held by such claimsstockholder immediately prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft), Merger Agreement (Entex Information Services Inc)
Stockholders’ Representative. 11.1 By virtue (a) The stockholders of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Company, by approving and adopting this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as Escrow Agreement and the transactions contemplated hereby and thereby, hereby irrevocably appoint the Stockholders’ RepresentativeRepresentative as their agent and attorney-in-fact for purposes of Section 8 and the Escrow Agreement, and consent to give the taking by the Stockholders’ Representative of any and receive notices all actions and communicationsthe 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 Escrow Shares, Escrow Cash or other property from the Escrow Fund, Fund in satisfaction of claims by the Indemnified Parties. The Stockholders’ Representative hereby agrees to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofof Claims, including third-party Claims, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration, and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch Claims, resolve any Claim made pursuant to Section 8; and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become . ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative for all purposes of this Section 8 and the Escrow Agreement.
11.3 The Company Stockholders have agreed . Parent shall be entitled to pay certain out-of-pocket costs and expenses of deal exclusively with the Stockholders’ Representative on all matters relating to Section 8 and the Escrow Agreement, and shall be entitled to indemnifyrely 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, defend and hold harmless 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 and shall die, become disabled or otherwise be unable to fulfill his affiliates and responsibilities as agent of the stockholders of the Company, then a majority-in-interest of the Entitled Holders (calculated based upon their respective Representatives 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” for certain lossespurposes of Section 8, liabilities the Escrow Agreement and expenses pursuant to this Section 10.1 of the Merger Agreement. 9.1.
(c) The Stockholders’ Representative may from time to time deliver claims shall not be liable for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and in the absence of gross negligence. The Entitled Holders on whose behalf cash and/or share of Parent Common Stock were contributed to the Escrow Agent certifying Fund shall severally indemnify Stockholders’ Representative and itemizing hold Stockholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of such Stockholders’ Representative and arising out of or in connection with the acceptance or administration of such Stockholders’ Representative’s duties hereunder, including the reasonable detail fees and expenses of any amounts legal counsel retained by such Stockholders’ Representative, as set forth in Section 9.1(e) below.
(d) The Stockholders’ Representative shall be entitled to which rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Stockholders’ Representative be responsible for the validity or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 sufficiency of the Merger this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2. In all questions arising under this Agreement, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from may rely on the Escrow Fund advice of counsel, and for anything done, omitted or suffered in good faith by delivering to the Stockholders’ Representative and/or his designees based on such advice, the Stockholders’ Representative shall not be liable to anyone.
(e) The reasonable expenses incurred by the Stockholders’ Representatives while acting on behalf of the holders of Company Common Stock under the authorization granted in this Section 9.1 shall be borne by the Entitled Holders pro rata and shall be payable out of the Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal Fund prior to any payment to the aggregate amount Entitled Holders, but in all cases, after payment of such claimsany and all amounts owing to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Each Principal Stockholder hereby irrevocably constitutes and this Agreement and the appointment of appoints ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (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 (including the Ancillary Agreements) or the 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’ RepresentativeRepresentative shall be deemed to have been validly delivered to each Principal Stockholder, to give (ii) any consent given or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement, by the Stockholders’ Representative shall be binding upon each and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofevery Principal Stockholder, and demand dispute resolution pursuant (iii) except as otherwise provided in Section 11.1, the Stockholders’ Representative is hereby authorized to Section 10 execute for and on behalf of each Principal Stockholder any amendment to this Agreement or any other agreement entered into in connection with this Agreement. 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 Principal Stockholder or by operation of law. Neither the Stockholders’ Representative nor any agent employed by it shall incur any Liability to any Principal Stockholder by virtue of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary failure or appropriate in the reasonable judgment refusal of the Stockholders’ Representative for any reason to consummate the accomplishment Transaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Principal Stockholders, jointly and severally, agree to indemnify the foregoing.
11.2 Any successor Stockholders’ Representative, his successors, assigns, agents, attorneys and affiliates (the “Stockholders’ Representative appointed pursuant Parties”) and to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become hold the Stockholders’ Representative for Parties harmless against any and all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and losses, Liabilities or expenses incurred without bad faith on the part of the Stockholders’ Representative and to indemnifyarising out of or in connection with his duties as Stockholders’ Representative, defend including the reasonable costs and hold harmless expenses incurred by the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail defending against any amounts to which the Stockholders’ Representative claim or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementLiability in connection herewith.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (DARA BioSciences, Inc.)
Stockholders’ Representative. 11.1 By virtue (a) In order to efficiently administer the Acquisition and the transactions contemplated hereby, including (i) the waiver of any condition to the obligations of the adoption Company Stockholders to consummate the Acquisition and the transactions contemplated hereby and (ii) the defense and/or settlement of any claims for which the Merger Agreement Company Stockholders and/or the other Selling Stockholders may be required to indemnify the Buyer and/or the Company pursuant to the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and Article VII below, the appointment of Company Stockholders hereby designate Rolf ▇▇▇▇▇ ▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Company Stockholders hereby authorize the Stockholders’ Representative' Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Company Stockholders to consummate the Acquisition and the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Company Stockholders and/or the other Selling Stockholders may be required to indemnify the Buyer and/or the Company pursuant to Article VII below, (ii) to give and receive all notices required to be given under this Agreement and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofAgreement, and demand dispute resolution pursuant (iii) to Section 10 take any and all additional action as is contemplated to be taken by or on behalf of the Merger Company Stockholders and/or the other Selling Stockholders by the terms of this Agreement and comply with orders of courts and awards of Arbitrator(sor the Escrow Agreement.
(c) with respect In the event that the Stockholders' Representative dies, becomes unable to claims of Indemnitees hereunderperform his responsibilities hereunder or resigns from such position, and the Selling Stockholders holding, prior to take all actions necessary or appropriate in the reasonable judgment Closing, a majority of the Stockholders’ Representative for Outstanding Company Shares as set forth in Attachment A to the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Escrow Agreement shall automatically, without any further action or notice, become select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders’ ' Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto.
11.3 The (d) All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and the Buyer relating to the defense or settlement of any claims for which the Company Stockholders and/or the other Selling Stockholders may be required to indemnify the Buyer and/or the Company pursuant to Article VII below, shall be binding upon all of the Company Stockholders and no Company Stockholder shall have agreed the right to pay certain object, dissent, protest or otherwise contest the same.
(e) By his execution of this Agreement, each Company Stockholder agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to the settlement of any claims for indemnification by the Buyer and/or the Company pursuant to Article VII below or any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against the Buyer to the extent the Buyer has relied upon the instructions or decisions of the Stockholders' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Company Stockholders and no Company 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, any of the Other Stock Purchase Agreements or the Escrow Agreement, except for fraud or willful breach of this Agreement or any such agreement by the Stockholders' Representative;
(iii) the provisions of this Section 1.10 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the Acquisition and the transactions contemplated by this Agreement or any of the Other Stock Purchase Agreements;
(iv) remedies available at law for any breach of the provisions of this Section 1.10 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 1.10; and
(v) the provisions of this Section 1.10 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) The Buyer shall reimburse the Stockholders' Representative for his reasonable out-of-pocket costs and expenses incurred in performing his services in connection with the Acquisition, up to a maximum reimbursement of $5,000. Any expenses in excess of such amount shall be paid by the Stockholders’ Representative and Selling Stockholders in proportion to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 ownership of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims Outstanding Company Shares as set forth in Attachment A to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which Agreement. Notwithstanding the foregoing, the Buyer shall also reimburse the Stockholders’ ' Representative or for his affiliates or their respective Representatives are entitled reasonable out-of-pocket expenses incurred in successfully defending against any claims for indemnification pursuant to Section 10.1 of this Agreement, the Merger Other Stock Purchase Agreements and/or the Escrow Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Security Dynamics Technologies Inc /De/), Stock Purchase Agreement (Security Dynamics Technologies Inc /De/)
Stockholders’ Representative. 11.1 By virtue Subject to the penultimate sentence of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ RepresentativeSection 4.1, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for shall serve as the accomplishment exclusive agent of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) holders of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative T2 Warrants and T3 Warrants for all purposes of this Agreement and the transactions contemplated hereby. Without limiting the generality of the foregoing, the Stockholders’ Representative 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 any other agreement, document or instrument contemplated by this Agreement.
11.3 . The Stockholders’ Representative also shall be exclusively authorized to take all actions on behalf of the holders of T2 Warrants and T3 Warrants in connection with any claims made under this Agreement or in respect of the Transactions 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 holders of T2 Warrants and T3 Warrants shall take any such 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 as the Stockholders’ Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The holders of shares of Company Stockholders have agreed Stock outstanding immediately prior to pay certain out-of-pocket costs the First Effective Time shall indemnify the Stockholders’ Representative and expenses hold it harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and to indemnify, defend and hold harmless arising out of or in connection with the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 acceptance or administration of the Merger Agreementits duties hereunder. The person serving as Stockholders’ Representative may resign or be replaced from time to time deliver claims to by the holders of a majority in interest of the Escrowed Stock held in the Escrow Agent certifying Account upon not less than ten (10) days’ prior written notice to Parent and itemizing in reasonable detail any amounts to with Parent’s written consent, which the Stockholders’ Representative shall not be unreasonably withheld, conditioned or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementdelayed.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Securities Exchange Agreement (Renaissance Acquisition Corp.), Securities Exchange Agreement (Renaissance Acquisition Corp.)
Stockholders’ Representative. 11.1 By virtue (a) Each Stockholder hereby appoints the Stockholders Representative as its agent and attorney-in-fact, with full power and authority to represent each Stockholder and such Stockholder’s successors and assigns with respect to all matters arising under this Agreement and each other Transaction Document; provided that, the Stockholders Representative will not be entitled to take any action with respect to any particular Stockholder without the consent of such Stockholder where such action would (i) reduce the Purchase Price, (ii) reduce such Stockholder’s Respective Portion of the adoption Purchase Price or the Holdback Amount, (iii) increase the Holdback Amount, (iv) increase the liability of such Stockholder under this Agreement or the other Transaction Documents or otherwise materially and adversely affect such Stockholder disproportionately to the other Stockholders, (v) amend the provisions of Article VII above or this Section 8.9, or (vi) agree to the extension of any time period set forth in this Agreement; and provided, further, that in any instance where a Stockholder is or may be severally liable under this Agreement or the other Transaction Documents, only such Stockholder (or its successors and assigns) shall have the power and authority to take action with respect such matter. In addition, the Stockholders Representative shall have no authority to execute or deliver the documents, certificates or agreements required to be executed and/or delivered by each Stockholder pursuant to Section 3.2 hereof. Subject to the foregoing limitations and the Contribution Agreement referred to in Section 8.14 below, the Stockholders Representative shall have full power and authority, on behalf of each Stockholder and such Stockholder’s successors and assigns, to interpret the terms and provisions of this Agreement and each other Transaction Document, to dispute or fail to dispute any Claim under this Agreement or any other Transaction Document, to negotiate and compromise any dispute that may arise under this Agreement or any other Transaction Document and to sign any releases or other documents with respect to any such dispute; provided that the Stockholders Representative shall not, without the consent of all the affected Stockholders (which consent shall not be unreasonably withheld or delayed), enter into any settlement, compromise or discharge of a Claim that by its terms (1) includes injunctive or other non-monetary relief that adversely affects a Stockholder in any material respect, (2) does not release the Stockholders completely in connection with such Claim, or (3) would otherwise adversely affect a Stockholder disproportionately to the other affected Stockholders. Notwithstanding the foregoing, any Stockholder may participate, at its own expense, in the defense of any Claim or dispute arising hereunder.
(b) Notwithstanding the foregoing, the Buyer shall be entitled to rely on any actions taken by the Stockholders Representative as the actions of all of the Merger Stockholders as if expressly ratified and confirmed in writing by each of them, and no Stockholder shall have any cause of action against the Buyer for any action taken by the Buyer in reliance upon the instructions or decisions of the Stockholders Representative.
(c) If, for any reason, the Stockholders Representative named in this Agreement is unable to serve as such, or while serving as such he or she resigns, the Escrow Contributors shall Stockholders holding at least a majority of the Shares immediately prior to the Closing will select in writing a substitute Stockholders Representative, who must be (i) one of the individuals identified as an officer or director of the Company on Schedule 4.2(i), or (ii) an individual who is otherwise reasonably familiar with the Transactions and the operations of the Company. Upon selection of any substitute Stockholders Representative, the Stockholders will provide prompt written notice thereof to the Buyer. If, for any reason, there is no Stockholders Representative at any time, all references in this Agreement to the Stockholders Representative will be deemed to have approved refer to the indemnification Stockholders holding at least a majority of the Shares immediately prior to the Closing.
(d) In performing any of his or her duties under this Agreement or upon the claimed failure to perform his or her duties under this Agreement, the Stockholders Representative will not be liable to the Stockholders or the Buyer or any of its Affiliates for any Damages that the Stockholders or the Buyer or any such Affiliates may incur as a result of any act, or failure to act, by the Stockholders Representative under this Agreement, except to the extent that a court of competent jurisdiction finally determines that such Damages were the result of the gross negligence or willful misconduct of the Stockholders Representative. The limitation of liability provisions set forth in of this Section 8.9(d) shall survive the Merger Agreement and termination of this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash any resignation or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 termination of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoingStockholders Representative.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Bell Industries Inc /New/), Stock Purchase Agreement (Bell Industries Inc /New/)
Stockholders’ Representative. 11.1 By virtue of voting in favor of the adoption and approval of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger Agreement or participating in the Escrow Contributors Merger and receiving the benefits thereof, including the right to receive Consideration Common Stock pursuant to this Agreement, or by executing and delivering a Letter of Transmittal in connection with the Transactions, each Indemnifying Stockholder shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement nominated, constituted and this Agreement appointed, and the appointment of does hereby irrevocably nominate, constitute and appoint ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇, as the representative, agent and true and lawful attorney in fact of the Indemnifying Stockholders, for all purposes in connection with this Agreement and the other Transaction Documents, with full power of substitution, to act in the name, place and stead of the Indemnifying Stockholders for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in the Stockholders’ Representative’s sole discretion, determine to be necessary, desirable or appropriate in connection with the Transactions. The Stockholders’ Representative shall be constituted and appointed as agent and attorney-in-fact for and on behalf of the Indemnifying Stockholders and shall have full power authority to represent, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch claims, to act on such Indemnifying Stockholders behalf with respect to the matters set forth in this Section 7, including giving and receiving all notices and communications to be given or received with respect to the matters set forth herein and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the interpretation of this Agreement and accomplishment of the foregoing.
11.2 Any successor . The Stockholders’ Representative appointed pursuant shall have no liability to Section 10.1(l) of the Merger Agreement shall automaticallyany Indemnifying Stockholders, without for any further action taken or noticenot taken, become decision made or instruction given by the Stockholders’ Representative for all purposes of in connection with this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of ; provided, however, that the Stockholders’ Representative and may be liable to indemnifythe Indemnifying Stockholders in the event of gross negligence, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreementfraud or intentional misconduct. The Stockholders’ Representative may also refrain from time to time deliver claims to taking any such actions in its sole discretion. Without limiting the Escrow Agent certifying and itemizing in reasonable detail any amounts to which generality of the foregoing, the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant shall have full power and authority to Section 10.1 interpret all the terms and provisions of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash this Agreement and to consent to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may beamendment hereof for, in respect the name and on behalf of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of all such claimsIndemnifying Stockholders and such successors.
Appears in 2 contracts
Sources: Merger Agreement (Agrify Corp), Merger Agreement (Agrify Corp)
Stockholders’ Representative. 11.1 (a) In order to efficiently administer the transactions contemplated hereby, including (i) the waiver of any condition to the obligation of ChannelHealth to consummate the transactions contemplated hereby, (ii) any adjustment in the Cash Reserves (as defined in Section 5.1(d) below) pursuant to Article V, (iii) the ability to consent, approve and agree on behalf of the holders of ChannelHealth Stock at the Effective Time (the "ChannelHealth Stockholders") to the calculation of the Earnout Revenue pursuant to Article III and (iv) the orderly distribution of the ChannelHealth Merger Consideration and, if applicable, the Earnout Shares from Parent to the ChannelHealth Stockholders, the ChannelHealth Stockholders (other than IDX) hereby designate IDX as their representative (in such capacity, the "Stockholders' Representative") in the manner described in Section 2.6(d) below.
(b) The ChannelHealth Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions on behalf of the ChannelHealth Stockholders relating to any adjustment in the Cash Reserves pursuant to Section 4.2, (ii) to make all decisions and grant all consents and approvals on behalf of the ChannelHealth Stockholders relating to the calculation of the Earnout Revenue and any distribution of Earnout Shares pursuant to Article III, (iii) to take all action necessary in connection with the waiver of any condition to the obligation of ChannelHealth to consummate the transactions contemplated hereby, (iv) to determine the ChannelHealth Stockholders to whom ChannelHealth Merger Consideration shall be distributed the amount of consideration to be so distributed, and the address of such ChannelHealth Stockholders, (v) to give and receive all notices required to be given under this Agreement and (vi) to take any and all additional action as is contemplated to be taken by or on behalf of the ChannelHealth Stockholders by the terms of this Agreement.
(c) All decisions and actions by the Stockholders' Representative shall be binding upon all of the ChannelHealth Stockholders and no ChannelHealth Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment approval of ▇▇▇▇ ▇▇▇▇▇ as the ChannelHealth Merger by the ChannelHealth Stockholders at a meeting of the ChannelHealth Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each ChannelHealth Stockholder that is not a holder of ChannelHealth Dissenting Shares hereby agrees that:
(i) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders’ Representative, ' Representative as to give and receive notices and communications, any actions required or permitted to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from be taken by the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Parent or Allscripts to take all actions necessary the extent the Parent has relied upon the instructions or appropriate in the reasonable judgment decisions of the Stockholders’ Representative for the accomplishment of the foregoing.' Representative;
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(ii) of the Merger Agreement shall automaticallyall actions, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs decisions and expenses instructions of the Stockholders’ ' Representative shall be conclusive and to indemnify, defend binding upon all of the ChannelHealth Stockholders and hold harmless no ChannelHealth 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, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 2.6 are independent and his affiliates severable, are irrevocable and their respective Representatives for certain lossescoupled with an interest and shall be enforceable notwithstanding any rights or remedies that any ChannelHealth Stockholder may have in connection with the transactions contemplated by this Agreement;
(iv) the provisions of this Section 2.6 shall be binding upon the executors, liabilities heirs, legal representatives, personal representatives, successor trustees, and successors of each ChannelHealth Stockholder, and any references in this Agreement to a ChannelHealth Stockholder or the ChannelHealth Stockholders shall mean and include the successors to the ChannelHealth Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(v) All fees and expenses pursuant incurred by the Stockholders' Representative shall be paid by the ChannelHealth Stockholders (other than holders of ChannelHealth Dissenting Shares) in proportion to Section 10.1 their ownership of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims ChannelHealth Stock immediately prior to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementEffective Time.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 2 contracts
Sources: Merger Agreement (Idx Systems Corp), Merger Agreement (Allscripts Inc /Il)
Stockholders’ Representative. 11.1 By virtue (i) Each holder of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Series A Preferred Stock hereby irrevocably constitutes and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ appoints GFI as the sole and exclusive attorney-in-fact and proxy of such holder of Series A Preferred Stock (the “Stockholders’ Representative”), with full power of substitution and resubstitution, to give and receive notices and communications, exercise or abstain from exercising the rights granted to authorize delivery to Parent the holders of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution Series A Preferred Stock pursuant to Section 10 of 4(d), this Section 6 and Section 8 to the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary fullest extent permitted by law. Any action taken or appropriate in the reasonable judgment of not taken by the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to this Section 10.1(l6(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 Merger Agreement Series 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 automaticallybe 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, without any further action bankruptcy, death or notice, become the Stockholders’ Representative for all purposes incapacity of each holder of Series A Preferred Stock. The provisions of this Agreement.
11.3 The Company Stockholders have agreed Section 6(b) shall terminate with respect to pay certain out-of-pocket costs and expenses a holder of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementSeries A Preferred Stock once such holder no longer owns any Series A Preferred Stock. The Stockholders’ Representative may from time appoint one or more successor representatives to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2Representative, and subject to the retention approval of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect holders of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims a majority of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering Series A Preferred Stock then outstanding.
(ii) Each holder of Series A Preferred Stock hereby irrevocably delegates all power and authority to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to exercise, on behalf of such holder of Series A Preferred Stock, any and all rights of such holder in respect of such Series A Preferred Stock pursuant to Section 4(d), this Section 6 and Section 8, including the granting of any waivers or the exercise of any consent, approval or voting rights or powers on behalf of such holder.
(iii) The Stockholders’ Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the aggregate amount holders of such claimsSeries 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 each and every one of the holders of Series A Preferred Stock. The Corporation hereby agrees that the Stockholders’ Representative shall not, in its capacity as such, have any liability to the Corporation or any 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. 11.1 By virtue (a) Orchestra Medical Ventures II, L.P., the Stockholder Representative, is hereby appointed as representative, attorney-in-fact and agent, with full power of the adoption of the Merger Agreement the Escrow Contributors shall be deemed substitution to have approved the indemnification provisions set forth act in the Merger Agreement name, place and this Agreement and the appointment stead of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and each Stockholder to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Stockholder Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes terms of this Agreement, and to act on behalf of each Stockholder in any amendment of or litigation or arbitration involving this Agreement or any Ancillary Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Stockholder Representative shall deem necessary or appropriate in conjunction with any 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
(iv) to take all actions or refrain from doing any further act or deed on behalf of the Stockholders which the Stockholder Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement as fully and completely as a Company Stockholder could do if personally present.
11.3 The Company (b) Notwithstanding the enumerated powers granted to the Stockholder Representative in Section 10.1(a) above, the Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders have agreed to pay certain outconsummate the transactions set forth in either Section 6.3(j) or Section 6.3(l);
(ii) take any action that adversely affect the rights of the other Stockholder, including, without limitation, their legal and economic interests.
(c) If the Stockholder Representative becomes unable to serve as Stockholder Representative, such other Person or Persons as may be designated by a majority-ofin-pocket costs and expenses interest of the Stockholders’ , shall succeed as the Stockholder Representative.
(d) 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 to indemnify, defend and hold harmless authority of the Stockholders’ Stockholder Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 this Agreement, except in the case of the Merger AgreementStockholder Representative’s gross negligence, bad faith or willful misconduct. The Stockholders’ Stockholder Representative may 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 Stockholder for any action taken or omitted 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 time to time deliver claims any losses arising out of its serving as the Stockholder Representative hereunder, except for losses arising out of or caused by the Stockholder Representative’s gross negligence, bad faith or willful misconduct. The Stockholder Representative is serving in his capacity as such solely for purposes of administrative convenience, and is not personally liable in such capacity for any of the obligations of the Stockholders hereunder, and the Purchaser and the Company agree that they will not look to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 personal assets of the Merger Agreement.
11.4 At Stockholder Representative, acting in such capacity, for the time satisfaction of any obligations to be performed by the Stockholders hereunder except to the extent of the distribution of any Escrow Shares Stockholder Representative’s gross negligence, bad faith or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimswillful misconduct.
Appears in 2 contracts
Sources: Share Exchange Agreement (Motus GI Holdings, Inc.), Share Exchange Agreement (Motus GI Holdings, Inc.)
Stockholders’ Representative. 11.1 By virtue the approval of this Agreement pursuant to applicable Law and execution of the adoption Stockholder Consent,
(a) Each Stockholder irrevocably appoints the Stockholders Representative as the representative, agent and proxy for all the Stockholders for all purposes under this Agreement including the full power and authority to act on the Stockholders’ behalf: (i) to consummate the transactions contemplated under this Agreement (including the adjustments under Section 2.4) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (ii) to negotiate disputes arising under, or relating to, this Agreement (including with respect to the adjustments under Section 2.4) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (iii) to receive and disburse to the Stockholders any funds received on behalf of the Merger Stockholders under this Agreement or otherwise; (iv) to withhold any amounts received on behalf of the Escrow Contributors shall be deemed Stockholders to have approved this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the indemnification provisions set forth Stockholders or the Stockholders Representative in the Merger Agreement performance of their duties hereunder; (v) to execute and deliver any amendment or waiver to this Agreement and the appointment other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, ); and (vi) to give and receive notices and communications, take all other actions to authorize delivery to Parent of Escrow Shares, Escrow Cash be taken by or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 on behalf of the Merger Stockholders in connection with this Agreement and comply with orders of courts and awards of Arbitrator(s) (including with respect to claims of Indemnitees hereunderthe adjustments under Section 2.4) and the other agreements, instruments, and to take documents contemplated hereby or executed in connection herewith. The Stockholders, by approving this Agreement, further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Stockholders Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder. All decisions and actions by the Stockholders Representative shall be binding upon all actions necessary or appropriate in the reasonable judgment of the Stockholders’ , and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders Representative for shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such duties and obligations shall be determined solely by the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes express provisions of this Agreement.
11.3 (b) Each Stockholder severally, for itself only and not jointly, agrees to indemnify and hold harmless the Stockholders Representative and its partners, managers, officers, agents and other Representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such Persons in connection with any action, suit or proceeding to which the Stockholders Representative or such other Person is made a party by reason of the fact that it is or was acting as, or at the direction of, the Stockholders Representative pursuant to the terms of this Agreement.
(c) Neither the Stockholders Representative nor any of its members, managers, officers, agents or other Representatives shall incur any liability to any Stockholder by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting intentional and knowing fraud. The Company Stockholders Representative and its members, managers, officers, agents and other Representatives shall have no liability in respect of any action, claim or proceeding brought against such Persons by any Stockholder, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action in good faith.
(d) Following the date that is the earlier of (x) twelve months from the Closing Date or (y) the later of (i) the final determination of all adjustments pursuant to Section 2.4 and (ii) full reimbursement of all Charges (as defined below), the Stockholders Representative shall distribute any remaining portion of the Stockholders Representative Expense Holdback Amount to the Stockholders on a pro rata basis (calculated based on the Fully Diluted Stock Count), it being understood and agreed that such distributions shall be the responsibility of the Stockholders Representative only and that neither Buyer nor the Surviving Corporation shall have any obligation to pay certain ensure that such distribution is, or distributions are, made. The Stockholders Representative shall have the right to recover from, in its sole discretion, the Representative Expense Holdback Account prior to any distribution to the Stockholders, the Stockholders Representative’s (including its Representatives) reasonable out-of-pocket costs expenses incurred in the performance of its duties hereunder (the “Charges”). In the event the Stockholders Representative Expense Holdback Amount is insufficient to satisfy the Charges, then each Stockholder will be obligated to pay its pro rata portion (calculated based on the Fully Diluted Stock Count) of such deficit.
(e) At any time prior to the distribution of the Stockholders Representative Expense Holdback Amount pursuant to Section 8.14(d) above, a majority-in-interest of the Stockholders may, by written consent, appoint a new representative as the Stockholders Representative. Notice together with a copy of the written consent appointing such new representative and expenses bearing the signatures of Stockholders of a majority-in-interest of those Stockholders must be delivered to Buyer and each other Stockholder not less than ten days prior to such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer. For the purposes of this paragraph (e), a “majority-in-interest of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 ” shall mean Stockholders holding more than 50% of the Merger AgreementShares entitled to vote at a duly called meeting of Stockholders to vote thereon.
(f) In the event that the Stockholders Representative becomes unable or unwilling to continue in his or its capacity as Stockholders Representative, or if the Stockholders Representative resigns as the Stockholders Representative, a majority-in-interest of the Stockholders may, by written consent, appoint a new representative as the Stockholders Representative. The Stockholders’ Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Stockholders must be delivered to Buyer and each Stockholder. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer.
(g) Buyer shall be entitled to rely upon any action or decision of, or instruction by, or any document or other paper delivered by, the Stockholders Representative may from time on behalf of the Stockholders (without any obligation to time deliver claims to inquire into the Escrow Agent certifying and itemizing in reasonable detail any amounts to which authority of the Stockholders’ Stockholders Representative or his affiliates the genuineness or their respective Representatives are entitled pursuant to Section 10.1 correctness of such document or other paper or any signature of the Merger Agreement.
11.4 At the time Stockholders Representative), and Buyer shall not be liable to any Stockholder for any action taken or omitted to be taken by Buyer in such reliance or with respect to actions, decisions and determinations of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsStockholders Representative.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ and DDJ Capital Management, LLC are hereby appointed to act as the representatives, agents, proxies and attorneys-in-fact for all Equityholders (the "Stockholders' Representatives") for all purposes under this Agreement and the Escrow Agreement including, without limitation, the full power and authority on each Equityholder's behalf to: (i) receive notices or service of process, (ii) negotiate, determine, compromise, settle and take any other action permitted or called for by Equityholders under this Agreement, including but not limited to Section 3.2 and Article VIII, and (iii) to execute and deliver any amendment or waiver to this Agreement and the Escrow Agreement in connection therewith. All decisions, actions or instructions by the Stockholders' Representatives shall be made jointly by the Stockholders' Representatives and shall constitute a decision, action or instruction of all Equityholders and shall be binding upon all Equityholders as it relates to this Agreement, and no Equityholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders' Representatives shall have no duties or obligations hereunder except those specifically set forth herein and in the Escrow Agreement and such duties and obligations shall be determined solely by the express provisions of this Agreement and the Escrow Agreement. Each Equityholder shall indemnify and hold harmless the Stockholders' Representatives against all expenses (including reasonable attorneys' fees), judgments, fines and amounts incurred by the Stockholders' Representatives in connection with any action, suit or proceeding to which the Stockholders' Representatives is made a party by reason of the fact it is or was acting as the Stockholders’ Representative' Representatives under this Agreement. Neither the Stockholders' Representatives nor any agent employed by either of them shall incur any liability to any Equityholder relating to the performance of its duties hereunder except for actions or omissions constituting fraud or bad faith. The Stockholders' Representatives shall have no liability in respect of any action, to give and receive notices and communications, to authorize delivery to Parent claim or proceeding brought against the Stockholders' Representatives by any Equityholder if the Stockholders' Representatives took or omitted taking any action in good faith. Such agency may be changed by the holders of Escrow Shares, Escrow Cash or other property from a majority in interest of the Escrow Fund, Amount from time to object time upon not less than five business days' prior written notice to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment Buyer. No bond shall be required of the Stockholders’ Representative ' Representative, and the Stockholders' Representatives shall receive no compensation for his services. Notices or communications to or from the accomplishment Stockholders' Representatives shall constitute notice to or from each of the foregoing.
11.2 Any successor Equityholders. The Stockholders’ Representative appointed pursuant ' Representatives may request reasonable access to Section 10.1(l) information about the Company and Buyer and the reasonable assistance of the Merger Agreement shall automaticallyCompany's and Buyer's officers and employees for purposes of performing their duties and exercising their rights hereunder, without any further action or notice, become provided that the Stockholders’ Representative ' Representatives shall treat confidentially and not disclose any nonpublic information from or about the Company or Buyer to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Stockholders' Representatives shall have the ability to seek payment or reimbursement for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain their out-of-pocket costs and expenses incurred in connection with the performance of their duties hereunder in any amount up to $25,000 in accordance with the terms of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Escrow Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.* * * * *
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) KKR Fund Holdings L.P. (or its designee) shall be the agent and attorney-in-fact for each of the adoption Securityholders to act as Stockholders’ Representative under this Agreement in accordance with the terms of this Section 10.3. Parent may rely upon any decision, act, consent or instruction of the Merger Agreement Stockholders’ Representative as being the Escrow Contributors decision, act, consent or instruction of each Stockholder, without inquiry, investigation or other obligation of Parent. In the event of the resignation, death or incapacity of the Stockholders’ Representative, a successor Stockholders’ Representative reasonably satisfactory to Parent shall thereafter be deemed appointed by Securityholders representing a majority of the outstanding shares of Company Common Stock as of immediately prior to have approved the indemnification provisions set forth in Closing. As of the Merger Agreement and this Agreement and date hereof, the appointment of Stockholders’ Representative has designated ▇▇▇▇▇ ▇▇▇▇▇▇ to act on behalf of the Stockholders’ Representative in its capacity as such.
(b) The Stockholders’ Representative is hereby authorized and empowered to act for, and on behalf of, any or all of the Securityholders (with full power of substitution in the premises) in connection with the transactions contemplated by this Agreement (i) to review and authorize all claims and disputes or question the accuracy thereof, (ii) to negotiate, settle and compromise on their behalf with Parent any claims asserted thereunder and to authorize payments to be made with respect thereto, including distributions from the Escrow Account, and (iii) to take such further actions as are authorized in this Agreement or the other agreements contemplated hereby to be taken by the Stockholders’ Representative. Parent and Merger Sub shall be entitled to rely on such appointment and to treat the Stockholders’ Representative as the duly appointed attorney-in-fact of each Securityholder for purposes of taking such actions. Notices given to the Stockholders’ Representative in accordance with the provisions of this Agreement shall constitute notice to Securityholders for all purposes under this Agreement.
(c) The appointment of the Stockholders’ Representative is an agency coupled with an interest and is irrevocable and any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 10.3 shall be effective and absolutely binding on each Securityholder that executes the Written Consent notwithstanding any contrary action of or direction from such Securityholder, except for actions or omissions of the Stockholders’ Representative constituting willful misconduct or gross negligence. The death or incapacity, or dissolution or other termination of existence, of any Securityholder shall not terminate the authority and agency of the Stockholders’ Representative. A decision, act, consent or instruction of the Stockholders’ Representative, to give and receive notices and communicationsincluding an amendment, to authorize delivery to Parent extension or waiver of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution this Agreement pursuant to Section 10 Article XII hereof, shall constitute a decision of all Securityholders and shall be final, binding and conclusive upon the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect Securityholders. Parent is entitled to claims of Indemnitees hereunderrely upon any such decision, and to take all actions necessary act, consent or appropriate in the reasonable judgment instruction of the Stockholders’ Representative for as being the accomplishment decision, act, consent or instruction of all Securityholders. Neither Parent nor the Escrow Agent shall have any liability to any Securityholder based on any action taken by such Person in accordance with such decision, act, consent or instruction of the foregoingStockholders’ Representative.
11.2 Any successor (d) The Stockholders’ Representative appointed pursuant shall not be liable to Section 10.1(l) of Parent, the Merger Agreement shall automaticallyCompany, without the Surviving Entity, the Securityholders or to any further other Person with respect to any action taken or notice, become omitted to be taken by the Stockholders’ Representative for all purposes of in its role as Stockholders’ Representative under or in connection with this Agreement.
11.3 , unless such action or omission results from or arises out of willful misconduct or gross negligence on the part of the Stockholders’ Representative. The Company Stockholders have agreed to pay certain Securityholders shall jointly and severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, claim, damage, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs fees and costs of other skilled professionals, and in connection with seeking recovery from insurers, judgments, fines, amounts paid in settlement and Stockholders’ Representative fees (collectively the “Representative Expenses”) reasonably incurred by the Stockholders’ Representative pursuant to this Agreement, the Escrow Agreement or any engagement letter entered into between the Securityholders and to indemnify, defend and hold harmless the Stockholders’ Representative with respect to the transactions contemplated by this Agreement. The Representative Expenses may be recovered (i) first, from the Expense Fund Amount and his affiliates (ii) second, directly from the Seller Indemnifying Parties pro rata based on the amount of the Merger Consideration received at the Closing pursuant to Sections 3.2 and their respective Representatives 3.3.
(e) The Expense Fund Amount shall be held by the Escrow Agent as agent and for certain losses, liabilities the benefit of the Seller Indemnifying Parties in a segregated client account and shall be used for the purposes of (i) paying any fees and expenses of the Accounting Firm allocated to the Seller Indemnifying Parties pursuant to Section 10.1 of 2.11(e) and (ii) paying directly, or reimbursing the Merger Agreement. The Stockholders’ Representative may from time for, any Representative Expenses reasonably incurred by the Stockholders’ Representative pursuant to time deliver claims this Agreement, the Escrow Agreement or any engagement letter entered into between the Securityholders and the Stockholders’ Representative with respect to the transactions contemplated by this Agreement. Promptly following the Survival Date or, if sooner, as reasonably determined by Stockholders’ Representative that any remaining portion of the Expense Fund Amount is no longer required to be withheld, the Stockholders’ Representative shall distribute the remaining portion of the Expense Fund Amount (if any) to the Escrow Agent certifying and itemizing for further distribution to the Seller Indemnifying Parties in reasonable detail any amounts to which accordance with the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 terms of the Merger Escrow Agreement and this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 (a) By virtue voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger Agreement or participating in the Escrow Contributors Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Securityholder shall be deemed to have approved the indemnification provisions set forth designation of, and hereby designates, Shareholder Representative Services LLC as the representative, agent and attorney-in-fact of each Securityholder for the purpose of taking all actions deemed necessary or appropriate by the Stockholders’ Representative on behalf of the Securityholders in the Merger Agreement and connection with this Agreement and the appointment agreements contemplated hereby. If the Stockholders’ Representative shall resign or be removed by the Securityholders, the Securityholders shall (by consent of ▇▇▇▇ ▇▇▇▇▇ those Persons entitled to at least a majority of the Merger Consideration), within 10 days after such resignation or removal, appoint a successor to the Stockholders’ Representative. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent Representative hereunder.
(b) The Stockholders’ Representative will incur no liability of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) any kind with respect to claims of Indemnitees hereunder, and to take all actions necessary any action or appropriate in the reasonable judgment of omission by the Stockholders’ Representative for in connection with the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed its services pursuant to Section 10.1(l) this Agreement and the agreements contemplated hereby, except in the event of liability directly resulting from the Merger Agreement shall automatically, without any further action Stockholder Representative’s gross negligence or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 willful misconduct. The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to Securityholders will indemnify, defend and hold harmless the Stockholders’ Representative from and his affiliates against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their respective Representatives staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement and the agreements contemplated hereby, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the 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 Securityholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund and (ii) the amounts of the First Anniversary Merger Consideration and/or Second Anniversary Merger Consideration at such time as such amounts would otherwise be distributable to the Securityholders; provided, that while this section allows the Stockholders’ Representative to be paid from the Expense Fund and such future consideration, this does not relieve the 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 Securityholders or otherwise. The Securityholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholders’ Representative or the termination of this Agreement.
(c) Upon the Closing, the Parent or Surviving Corporation will wire to the Stockholders’ Representative an amount of $1,000,000 (the “Expense Fund”), which will be used for certain lossesthe purposes of paying directly, liabilities and or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to Section 10.1 of this Agreement and the Merger Agreementagreements ancillary hereto. The Securityholders 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 had in any such interest or earnings. The Stockholders’ Representative may 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 time 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 time deliver claims to its creditors in the Escrow Agent certifying and itemizing in reasonable detail any amounts to which event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 will deliver the balance of the Merger Agreement.
11.4 At Expense Fund to the Payments Administrator for further distribution to the Securityholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Securityholders at the time of the distribution Closing. The parties hereto have caused this Agreement to be executed and delivered as of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2February 11, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.22016. ▇▇▇.▇▇▇ GROUP, INC., a Delaware corporation By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. BrownTitle: Chief Executive Officer ▇▇▇▇▇▇ CREEK ▇▇▇.▇▇▇, LLC, a Delaware limited liability company By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. BrownTitle: CEO YODLE, INC. a Delaware corporation By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: Court CunninghamTitle: Chief Executive Officer SHAREHOLDER REPRESENTATIVE SERVICES LLC, a Colorado limited liability company solely in its capacity as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇. ▇▇▇▇ KoenigTitle: Managing Director For purposes of the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.(including this Exhibit A):
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) In order to efficiently administer the transactions contemplated hereby, including (i) the determination of the adoption Net Book Value Adjustment, (ii) the waiver of any condition to the obligations of the Merger Agreement Company Stockholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Company pursuant to the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and Article VII below, the appointment of Stockholders hereby designate ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Company Stockholders hereby authorize the Stockholders’ Representative' Representative (i) to make all decisions relating to the determination of the Net Book Value Adjustment and to deliver all or any portion of the Escrow Cash Payment with respect thereto, (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 and/or the Company pursuant to Article VII below, (iii) to give and receive all notices required to be given under this Agreement and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofAgreement, and demand dispute resolution pursuant (iv) to Section 10 take any and all additional action as is contemplated to be taken by or on behalf of the Merger Company Stockholders by the terms of this Agreement and comply with orders of courts and awards of Arbitrator(sthe Escrow Agreement.
(c) with respect In the event that the Stockholders' Representative dies, becomes unable to claims of Indemnitees hereunderperform his responsibilities hereunder or resigns from such position, and the Company Stockholders holding, prior to take all actions necessary or appropriate in the reasonable judgment Closing, a majority of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant Company Shares as set forth on Schedule I attached hereto shall select another -------- - representative to Section 10.1(l) of the Merger Agreement fill such vacancy and such substituted representative shall automatically, without any further action or notice, become be deemed to be the Stockholders’ ' Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto.
11.3 The (d) All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and the Buyer relating to the determination of the Net Book Value Adjustment, the defense or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Company pursuant to Article VII below, shall be binding upon all of the Company Stockholders and no Company Stockholder shall have agreed the right to pay certain out-of-pocket costs object, dissent, protest or otherwise contest the same.
(e) By his execution of this Agreement, each Company Stockholder agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and expenses decisions of the Stockholders’ ' Representative and as to indemnifythe determination of the Net Book Value Adjustment, defend and hold harmless the settlement of any claims for indemnification by the Buyer and/or the Company pursuant to Article VII below or any other actions required or permitted to be taken by the Stockholders’ ' Representative hereunder, and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 no party hereunder shall have any cause of action against the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims Buyer to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which extent the Stockholders’ Representative Buyer has relied upon the instructions or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions of the Stockholders’ ' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative submitted shall be conclusive and binding upon all of the Company Stockholders and no Company 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, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company 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; and
(v) the provisions of this Section 1.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholder's rights hereunder, whether pursuant to Section 11.3 from testamentary disposition, the Escrow Fund laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by delivering to the Stockholders’ ' Representative and/or his designees Escrow shall be paid by the Company Stockholders in proportion to their ownership of Company Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.as set forth in Schedule I attached hereto. -------- -
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissance Solutions Inc)
Stockholders’ Representative. 11.1 By virtue The Stockholders hereby appoint Gabriel Norona (such person and any successor or successors being the "▇▇▇▇▇▇▇▇▇▇▇▇' REPRESENTATIVE"), and Gabriel Norona shall act as, the representative of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Stockholders, w▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as ▇rity to act on behalf of the Stockholders and to take any and all actions required or permitted to be taken by the Stockholders’ Representative' Representative under this Agreement, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to any claims of Indemnitees hereunder(including the settlement thereof) made by Bentley or the Stockholders for indemnification pursuant to this Article 9. The Stockholders shall be bound by all 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 take the Stockholders of any action taken on their behalf by the Stockholders' Representative pursuant to the authority delegated to the Stockholders' Representative under this Section 9.4. The Stockholders' Representative shall at all actions necessary or appropriate times act in his capacity as Stockholders' Representative in a manner that the Stockholders' Representative believes to be in the reasonable judgment best interest of the Stockholders’ . The Stockholders' Representative shall not be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the accomplishment 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 him in accordance with the advice of such counsel, accountants or experts. The Stockholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallyterms, without any further action covenants or notice, become the Stockholders’ Representative for all purposes conditions of this Agreement.
11.3 The . As to any matters not expressly provided for in this Agreement, the Stockholders' Representative shall not be 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 Stockholder any Merger Consideration to which such Stockholder is entitled under this Agreement and (b) the Stockholders' Representative shall not, in any manner, exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company Stockholders have agreed or Bentley now or hereafter owned of record or beneficially by any Stockholder unless the Stockholders' Representative is expressly authorized to pay certain out-of-pocket costs and expenses do so in a separate writing signed by such Stockholder. In all matters relating to this Article 9, the Stockholders' Representative shall be the only party entitled to assert the rights of the Stockholders’ Representative , and to indemnify, defend and hold harmless the Stockholders’ ' Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 shall perform all of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 obligations of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash Stockholders hereunder. Bentley shall be entitled to any Escrow Contributors pursuant to Section 8.1 or Section 8.2rely on all statements, representations and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims' Representative.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) In order to administer efficiently the registration of the adoption Registrable Shares and the defense and/or settlement of any ABIOMED Claims for which the Merger Agreement Holders may be required to indemnify the Escrow Contributors shall ABIOMED Group pursuant to Section 9 hereof, the Holders hereby designate the Stockholders’ Representative as their representative and agent under this Agreement, and the 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 approved the indemnification provisions set forth in the Merger Agreement and all matters arising out of this Agreement and the appointment 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 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.
(c) In the event that the Stockholders’ Representative dies, becomes unable to perform his or its responsibilities hereunder or resigns or is removed from such position (in accordance with the provisions of Section 2.8(c) of the Purchase Agreement), a successor Stockholders’ Representative shall be appointed pursuant to the terms of Section 2.8(c) of the Purchase Agreement.
(d) All decisions and actions by the Stockholders’ Representative, including actions under this Agreement and the defense or settlement of any ABIOMED Claims for which the Holders may be required to give and receive notices and communications, to authorize delivery to Parent indemnify members of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution ABIOMED Group pursuant to Section 10 9 hereof, shall be binding upon all of the Merger Agreement Holders, and comply with orders no Holder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their adoption of courts this Agreement, the Holders agree that:
(i) ABIOMED shall be able to rely conclusively on the instructions and awards decisions of Arbitrator(s) with respect the Holders’ Representative relating to claims the Shelf Registration or any other registration of Indemnitees 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 hereunder, and to take no Person shall have any cause of action against any member of the ABIOMED Group for any action taken by any member of the ABIOMED Group in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all actions necessary or appropriate in the reasonable judgment actions, decisions and instructions of the Stockholders’ Representative for the accomplishment shall be conclusive and binding upon all of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) Holders and no Holder shall have any cause of the Merger Agreement shall automatically, without any further action or notice, become against the Stockholders’ Representative for all purposes any action taken or not taken, decision made or instruction given by the Stockholders’ Representative arising out of or in connection with the acceptance or administration of his or its duties hereunder, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
(iii) the provisions of this Section 13 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Holder may have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 13 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Holder, and any references in this Agreement to a Holder or the Holders shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
11.3 The Company Stockholders have agreed (f) Each Holder consents to pay certain out-of-pocket costs and expenses the appointment of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 2.8 of the Merger Agreement. The Stockholders’ Representative may from time Purchase Agreement and agrees to time deliver claims to be bound by the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to provisions of Section 10.1 2.8 of the Merger Purchase Agreement (the provisions of which are hereby incorporated by reference mutatis mutandis).
(g) ABIOMED shall have no liability for any fees or expenses of the Stockholder Representative under this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Sources: Registration Rights and Stock Restriction Agreement (Abiomed Inc)
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of the Merger Agreement the Escrow Contributors "Stockholders' Representative" shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇mean Herb▇▇▇ ▇. ▇▇▇▇ ▇▇, ▇▇I or any person appointed as the a successor Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution ' Representative pursuant to Section 10 1.06(b) hereof.
(b) During the 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 Merger Agreement and comply with orders amount of courts and awards of Arbitrator(s) with respect such Company Common Stock outstanding immediately prior to claims of Indemnitees hereundersuch time (a "Majority"), and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallymay, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims upon written notice to the Escrow Agent certifying Stockholders' Representative and itemizing 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 incapacitated, resigns or is 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 Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Majority of any successor Stockholders' Representative shall be provided to GRS promptly after it shall have been effected.
(c) The Stockholders' Representative shall be authorized to take any action and 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 reasonable detail any amounts to this Agreement (an "Instrument") which the Stockholders’ ' Representative determines to be necessary, appropriate or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2desirable, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may beand, in respect of Indemnification Demands made by any Parent Indemniteesconnection therewith, to hire or retain, at the Escrow Agent shall first pay claims 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 submitted pursuant the right and power to Section 11.3 from execute the Escrow Fund by delivering to Agreement on their behalf with such changes or amendments thereto as the Stockholders’ ' Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal shall determine to the aggregate amount of such claims.be necessary or desirable in their sole and absolute
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. 11.1 By virtue (a) The stockholders of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and Company, by adopting this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as Escrow Agreement and the transactions contemplated hereby and thereby, hereby irrevocably appoint the Stockholders’ RepresentativeRepresentative as their agent and attorney-in-fact for purposes of this Agreement and the Escrow Agreement, and consent to give the taking by the Stockholders’ Representative of any and receive notices all actions and communicationsthe making of any decisions required or permitted to be taken by him under this Agreement or the Escrow Agreement (including, without limitation, the exercise of the power to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow FundShares in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, of and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration, and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims such claims, resolve any claim made pursuant to Section 6, agree to, negotiate and enter into settlements and compromises with respect to the Contingent Payments (including, without limitation, pursuant to Section 1.12(h) of Indemnitees hereunderthis Agreement), and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become ). ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative for all purposes of this Agreement and the Escrow Agreement.
11.3 The Company Stockholders have agreed . Parent shall be entitled to pay certain out-of-pocket costs and expenses of deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and the Escrow Agreement, and shall be entitled to indemnifyrely 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, defend and hold harmless 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 and shall die, become disabled or otherwise be unable to fulfill his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 responsibilities as agent of the Merger stockholders of the Company, then ▇▇▇▇▇▇▇ ▇▇▇▇ 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” for purposes of this Agreement and the Escrow Agreement. .
(c) The Stockholders’ Representative may from time to time deliver claims shall not be liable for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment. Stockholders of the Company on whose behalf Escrow Shares were contributed to the Escrow Agent certifying escrow shall severally indemnify each Stockholders’ Representative and itemizing hold each Stockholders’ Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of such Stockholders’ Representative and arising out of or in connection with the acceptance or administration of such Stockholders’ Representative’s duties hereunder, including the reasonable detail fees and expenses of any amounts legal counsel retained by such Stockholders’ Representative.
(d) The Stockholders’ Representative shall be entitled to which rely upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without being required to investigate the validity, accuracy or content thereof nor shall the Stockholders’ Representative be responsible for the validity or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 sufficiency of the Merger this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2. In all questions arising under this Agreement, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from may rely on the Escrow Fund advice of counsel, and for anything done, omitted or suffered in good faith by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal based on such advice, the Stockholders’ Representative shall not be liable to the aggregate amount of such claimsanyone.
Appears in 1 contract
Sources: Merger Agreement (Clarient, Inc)
Stockholders’ Representative. 11.1 By virtue (a) The Stockholders hereby designate Norman Dodd as their representative (the "Stockholders' Representativ▇").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions on behalf of the adoption Stockholders relating to the determination of the Merger Final Purchase Price and the purchase price adjustments pursuant to Section 2.5, (ii) to make all decisions relating to the distribution of any amounts payable or distributable to the Stockholders hereunder, (iii) 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 Barnabus Indemnitees pursuant to Section 11 hereof, (iv) to give and receive all notices, receipts, directions and certificates required to be given under the Agreement, (v) to receive executed copies of Related Agreements at the Closing, (vi) to designate a director nominee pursuant to Section 7.6, (vii) to take any action necessary in connection with the registration of Barnabus Common Shares pursuant to the Registration Rights Agreement and (viii) to take any and all additional action as is contemplated to be taken by or on behalf of the Escrow Contributors Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders' Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Stockholders who held on the Closing Date a majority of the Company Common 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 have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as be the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ ' Representative for all purposes of this Agreement.
11.3 The (d) All decisions and actions by the Stockholders' Representative, including, without limitation, any agreement between the Stockholders' Representative and Barnabus, Exchangeco and the Company relating to the determination of the Final Purchase Price, the purchase price adjustments pursuant to Section 2.5, or the defense or settlement of any claims for which the Stockholders have agreed may be required to pay certain out-of-pocket costs indemnify Barnabus or Exchangeco pursuant to Section 11 hereof, shall be binding upon and expenses inure to the benefit of all of the Stockholders’ Representative , and no Stockholder shall have the right to indemnifyobject, defend dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) Barnabus, Exchangeco and hold harmless the Company shall be able to rely conclusively on the instructions and decisions of the Stockholders’ ' Representative and his affiliates and their respective Representatives for certain lossesas to the determination of the Final Purchase Price, liabilities and expenses the purchase price adjustments pursuant to Section 10.1 2.5 or the settlement of any claims for indemnification by Barnabus or Exchangeco pursuant to Section 11 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 Barnabus, Exchangeco or the Company for any action taken by Barnabus, Exchangeco or the Company in reliance upon the instructions or decisions of the Merger Agreement. The Stockholders’ ' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative may from time to time deliver claims shall be conclusive and binding upon and inure to the Escrow Agent certifying benefit of all of the Stockholders and itemizing 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, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 2.7 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in reasonable detail connection with the transactions contemplated by this Agreement;
(iv) the provisions of this Section 2.7 shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder, and any amounts references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(v) each of the Stockholders, other than Norman Dodd and the Dodd Family Trust, severally agree to indemnify a▇▇ ▇▇▇▇ ▇▇▇mless the ▇▇▇ckholders' Representative for any and all claims to which the Stockholders’ ' Representative may become subject, insofar as such claims relate to, are caused by, result from, arise out of, are based upon, directly or his affiliates indirectly, or their respective Representatives are entitled pursuant to Section 10.1 of as a consequence of, any decisions made, any action taken, any notices given or received by the Merger AgreementStockholders' Representative in such capacity and as contemplated hereunder, provided that the Stockholders' Representative acts honestly and in good faith.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, (f) All reasonable fees and subject to the retention of Escrow Shares and/or Escrow Cash expenses incurred by the Escrow Agent pursuant Stockholders' Representative shall be paid by the Stockholders in proportion to Section 8.1 or Section 8.2, their ownership of Company Common Shares as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsset forth on Schedule I attached hereto.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) At the Closing, without further act of the adoption any Stockholder or holder of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as In-the-Money Options, the Stockholders’ RepresentativeRepresentative shall be appointed as agent and attorney-in-fact for each such holder, to give and receive notices and communications, to authorize delivery to Parent Buyer or the Surviving Corporation of Escrow Shares, Escrow Cash or other property cash from the Escrow FundAccount 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 dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch claims, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholdersforegoing and in the defense of any claim against the Escrow Account for indemnity under Article 10. Such agency may be changed by the holders of a majority in interest in the Escrow Account from time to time upon not less than 10 days’ Representative appointed pursuant prior written notice to Section 10.1(l) of Buyer and the Merger Agreement shall automaticallyEscrow Agent; provided, without any further action or noticehowever, become that the Stockholders’ Representative for all purposes may not be removed unless holders of this Agreementa 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.
11.3 (b) The Company Stockholders have agreed Stockholders’ Representative shall not be liable for, or to pay certain out-any Person in respect of-pocket costs , any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and expenses in the exercise of reasonable judgment.
(c) A decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision, act, consent or instruction of all Stockholders and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 holders of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims In-the-Money Options with respect to the Escrow Agent certifying Account and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 shall be final, binding and conclusive upon each of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2such holder, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 and Buyer may rely upon any such decision, act, consent or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims instruction of the Stockholders’ Representative submitted pursuant to Section 11.3 from as being the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount decision, act, consent or instruction of each and every such claimsholder.
Appears in 1 contract
Stockholders’ Representative. 11.1 (a) By virtue of the adoption approval of this Agreement and/or execution of a Securityholder Acknowledgment Agreement and without any further action of any of the Merger Sellers or the Company, each of the Sellers, from and after the Closing, irrevocably constitutes and appoints the Stockholders’ Representative to be his, her or its true and lawful exclusive agent and attorney-in-fact with full power of substitution to act as exclusive agent and representative for and on behalf of the Sellers with respect to any matter arising under or in connection with this Agreement or the Escrow Contributors Agreement. The appointment of the Stockholders’ Representative 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, immunities and rights to indemnification granted to the Stockholders’ Representative Group hereunder: (i) are coupled with an interest and irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be deemed to have approved binding on any successor thereto, and (ii) shall survive the indemnification provisions set forth delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Merger Agreement and this Agreement and Escrow Amount. Without limiting the appointment generality of ▇▇▇▇ ▇▇▇▇▇ as the foregoing, each of the Sellers has authorized the Stockholders’ Representative, from and after the Closing, (A) to give act on its behalf in connection with (i) executing and receive notices delivering, on behalf of the Sellers, any and communicationsall documents or certificates to be executed by the Sellers in connection with this Agreement, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements Agreement and compromises ofthe transactions contemplated hereby and thereby, and demand dispute resolution pursuant (ii) the Escrow Agreement upon the terms and conditions set forth therein, and (B) to Section 10 do or refrain from doing any further act or deed on behalf of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions Sellers which the Stockholders’ Representative deems necessary or appropriate in its sole discretion relating to the reasonable judgment subject matter of this Agreement and the Escrow Agreement. In connection with the foregoing, the Stockholders’ Representative shall be entitled to retain counsel and to incur such fees, costs and expenses as the Stockholders’ Representative deems to be 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 in the Stockholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative for in any ancillary agreement, schedule, exhibit or the accomplishment of Schedules. All actions taken by the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant 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 Section 10.1(l) any Seller to contest, negate or disaffirm the action of the Merger 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 automatically, without survive the resignation or removal of the Stockholders’ Representative or any further action 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 notice, become reimbursing the Stockholders’ Representative for all purposes of Stockholders’ Representative Expenses (as defined below) incurred pursuant to this Agreement.
11.3 , the Escrow Agreement or any Stockholders’ Representative Engagement Agreement, or (ii) as otherwise determined by the Advisory Group. The Company Stockholders Stockholders’ Representative is not providing any investment supervision, recommendations or advice and shall have agreed 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 pay certain out-of-pocket 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 his affiliates against any and their respective Representatives for certain all losses, liabilities claims, damages, liabilities, fees, costs, expenses (including fees, disbursements and expenses pursuant to Section 10.1 costs of counsel and other skilled professionals and in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement (collectively, the “Stockholders’ Representative Expenses”) incurred without 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 its duties 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 Amount, Contingent Merger AgreementConsideration or other amounts otherwise distributable to the Sellers at the time of distribution, and third, directly from the Sellers. The Stockholders’ Representative may from time to time deliver claims seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or the Escrow Agent certifying Agreement or its duties hereunder or thereunder, and itemizing it will incur no liability in reasonable detail any amounts to which its capacity as the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash Sellers and will be fully protected with respect to any Escrow Contributors pursuant to Section 8.1 action taken, omitted or Section 8.2, and subject to suffered by it in good faith in accordance with the retention opinion of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of such counsel. The Sellers acknowledge that the Stockholders’ Representative submitted 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 Section 11.3 from this Agreement, the Escrow Fund by delivering to Agreement, the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Engagement Agreement Conversion Price and/or Escrow Cash equal or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the aggregate amount 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.
(f) The Stockholders’ Representative shall be entitled to: (i) rely upon the Allocation Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of such claimsthe applicable Seller or other party.
Appears in 1 contract
Sources: Merger Agreement (3d Systems Corp)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors (a) Jeff Zernov shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of constituted an▇ ▇▇▇▇ ▇▇▇▇▇▇ as agent ("Stockholders' Representative") for and on behalf of the Stockholders’ Representative, Target shareholders to give and receive notices and communications, to authorize delivery to Parent Acquiror of Escrow Shares, Escrow Cash the Acquiror Common Stock or other property from the Escrow FundFund in satisfaction of claims by Acquiror, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch claims, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) . Such agency may be changed by the holders of a majority in interest of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may Escrow Fund from time to time deliver claims upon not less than 10 days' prior written notice to Acquiror. The Stockholders' Representative may resign upon 30 days notice to the Escrow Agent certifying parties to this Agreement and itemizing in reasonable detail any amounts to which the former Target Shareholders. No bond shall be required of the Stockholders’ ' Representative, and the Stockholders' Representative shall receive no compensation for his services. Notices or his affiliates communications to or their respective Representatives are entitled from the Stockholders' Representative shall constitute notice to or from each of the Target shareholders. If Jeff Zernov is unable to serve as Stockholders' Representative then, subject to the terms and conditions of this Agreement, Tony Capra shall serve as ▇tockholders' Representative. If Tony Capra is unable to serve as Stockholders' Representative, then, subject to the terms and conditions of this Agreement, Dean Capra shall serve as ▇tockholders' Representative.
(b) The Stockholders' Representative shall not be liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to Section 10.1 the advice of counsel shall be conclusive evidence of such good faith. The Target shareholders shall severally indemnify the Stockholders' Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Merger AgreementStockholders' Representative and arising 77 out of or in connection with the acceptance or administration of his duties hereunder.
11.4 At (c) The Stockholders' Representative shall have reasonable access to information about Target and the reasonable assistance of Target's officers and employees for purposes of performing its duties and exercising its rights hereunder, provided that the Stockholders' Representative shall treat confidentially and not disclose any nonpublic information from or about Target to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
(d) Each of the Target shareholders hereby irrevocably appoints the Stockholders' Representative as his, her or its true and lawful attorney-in-fact and proxy, with full power of substitution for and in his name, to vote and otherwise act with respect to all of his, hers or its shares of capital stock of the Acquiror held in the Escrow Fund, at any meetings of stockholders of the Acquiror (or by written action in lieu thereof) and at any other time such shares are required to or may be voted or acted upon.
(e) It is understood and agreed that the appointment and proxy granted by the each shareholder in Section 8.8(d) above is irrevocable and is coupled with an interest within the meaning of Minn. Stat. ss. 302A.449. The proxy granted in Section 8.8(d) above will not terminate by operation of law, or by death, bankruptcy or adjudication of incompetence or insanity of any Target shareholder or the occurrence of any other event except upon the distribution of any such shares to the Target shareholders and then only with respect to such shares distributed. All shares remaining in the Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and Fund shall remain subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to proxy granted in Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims8.8(d) above.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) The Voting Stockholders of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and Company, by approving this Agreement and the appointment of transactions contemplated hereby and thereby, hereby irrevocably appoint ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇-Levi as their agent and attorney-in-fact for purposes of this Agreement and the Transaction Documents, including without limitation, Sections 2.2, 9 and 10 and the Escrow Agreement (the “Stockholders’ Representative”), and consent to the taking by the Stockholders’ RepresentativeRepresentative of any and all actions and the making of any decisions required or permitted to be taken by her or him under this Agreement, to give the Escrow Agreement and receive notices and communicationsthe Transaction Documents (including, without limitation, the exercise of the power to authorize delivery to Parent the ILOG Group of Escrow Shares, Escrow Cash or other property from cash out of the Escrow Fund, in satisfaction of claims by the ILOG Group). The Stockholders’ Representative hereby agrees to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofof claims, and demand dispute resolution pursuant including third-party claims, to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch claims, resolve any claim made pursuant to Sections 2.2, 9 and to 10, take all actions necessary in her or appropriate in the reasonable his judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action and hereby accepts her or notice, become his appointment as the Stockholders’ Representative for all purposes of this Agreement.
11.3 such purposes. The Company Stockholders have agreed ILOG Group shall be entitled to pay certain out-of-pocket costs and expenses of deal exclusively with the Stockholders’ Representative on all matters relating to the foregoing and shall be entitled to indemnifyrely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Company Shareholders by the Stockholders’ Representative, defend and hold harmless on any other action taken or purported to be taken on behalf of any Company shareholder by the Stockholders’ Representative, as fully binding upon such Company shareholder.
(b) If the Stockholders’ Representative and shall die, become disabled or otherwise be unable to fulfill her or his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 responsibilities as agent of the Merger AgreementCompany shareholders, then ▇▇. The ▇▇▇▇▇ ▇▇▇▇▇▇-Levi shall, within ten days (10) after such death or disability, appoint a successor representative reasonably satisfactory to ILOG, Inc. Any such successor shall become the “Stockholders’ Representative” for all purposes described herein. If for any reason there is no Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail at any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2time, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering all references herein to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal shall be deemed to the aggregate amount of such claimsrefer to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇-Levi.
Appears in 1 contract
Sources: Merger Agreement (Ilog Sa)
Stockholders’ Representative. 11.1 By virtue of (a) Effective only upon the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Effective Time, ▇▇▇▇ ▇▇▇▇▇ (such person and any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the Company Stockholders, and shall be authorized to act on behalf of the Company Stockholders and to take any and all actions required or permitted to be taken by the Stockholders’ RepresentativeRepresentative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article IX and with respect to any actions to be taken by the Stockholders’ Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to give and receive notices and communications, to (i) authorize the delivery to Parent of Escrow SharesShares to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to (ii) agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to any claims of Indemnitees hereunder, for indemnification and to (iii) take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant ). In all matters relating to Section 10.1(l) of this Article IX as described in the Merger Agreement shall automaticallypreceding sentence, without any further action or notice, become the Stockholders’ Representative for shall be the only party entitled to assert the rights of the Company Stockholders, and the Stockholders’ Representative shall perform all purposes of this Agreement.
11.3 The the obligations of the Company Stockholders have agreed hereunder. The Parent Indemnified Parties shall be entitled to pay certain out-of-pocket costs rely on all statements, representations and expenses decisions of the Stockholders’ Representative. The Stockholders’ Representative and is not entitled to indemnifyamend this Agreement or take any actions relating to this Agreement prior to the Effective Time. Following the Effective Time, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 may amend this Agreement with the prior written consent of the Merger Agreementholders of a majority-in-interest in the Escrow Funds. The Stockholders’ Representative may resign upon not less than 20 business days’ prior written notice to Parent and the Company Stockholders. The Company Stockholders by the vote of a majority-in-interest of the Escrow Funds may remove the Stockholders’ Representative from time to time deliver claims upon not less than 20 business days’ prior written notice to Parent. Any vacancy in the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims position of the Stockholders’ Representative submitted may be filled by the approval of the holders of a majority-in-interest in the Escrow Funds. Any successor Stockholders’ Representative shall acknowledge in writing to Parent her acceptance of her appointment as Stockholders’ Representative.
(b) The Company Stockholders shall be bound by all actions taken by the Stockholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Stockholders’ Representative shall promptly, and in any event within ten business days, provide written notice to the Company Stockholders of any action taken on behalf of them by the Stockholders’ Representative pursuant to Section 11.3 from the Escrow Fund by delivering authority delegated to the Stockholders’ Representative and/or under this Section 9.05. The Stockholders’ Representative shall at all times act in his designees or her capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to be in the best interest of the Company Stockholders. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith 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 or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Stockholders’ Representative shall not exercise any discretion or take any action.
(c) Each Company Stockholder on whose behalf the Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal were contributed to the aggregate amount Escrow Account shall, severally and not jointly, hold harmless and reimburse the Stockholders’ Representative from and against such Company Stockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Stockholders’ Representative) arising out of or resulting from the Stockholders’ Representative’s gross negligence, bad faith or willful misconduct; provided, however, that no such Company Stockholder shall be liable in excess of such claimsCompany Stockholder’s pro rata portion of the Aggregate Merger Consideration. In the event there are any remaining funds in the Escrow Accounts to be distributed to stockholders of Company immediately prior to any interim distribution or the final distribution from the Escrow Accounts pursuant to the Escrow Agreement, the Stockholders’ Representative shall be entitled to recover any such expenses from the Escrow Accounts prior to the distribution of funds to the Company Stockholders. The Stockholders’ Representative shall not be entitled to any compensation for his or her services in such capacity.
(d) Notwithstanding anything to the contrary herein or in the Escrow Agreement, the Stockholders’ Representative is not authorized to, and shall not, accept on behalf of any Company Stockholder any merger consideration to which such Company Stockholder is entitled under this Agreement and the Stockholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Stockholder unless the Stockholders’ Representative is expressly authorized to do so in a writing signed by such Company Stockholder.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue Notwithstanding anything to the contrary contained herein (a) each Stockholder shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such Stockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the adoption Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and or this Agreement and the appointment other than such liabilities, losses, damages, claims, costs, or expenses arising out of ▇▇▇▇ ▇▇▇▇▇ as or resulting from the Stockholders’ Representative’s negligence, bad faith, or willful misconduct (such indemnifiable amounts being referred to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofcollectively as “Expenses”), and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s(b) with respect to claims of Indemnitees hereunderany Expenses that are not reimbursed by any Stockholder as provided for herein, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for shall be entitled to set off such Expenses against the accomplishment of Escrow Shares that would otherwise have been released to such Stockholder pursuant to the foregoingterms hereof.
11.2 Any successor In addition, the Stockholder Representative may request the Escrow Agent to set aside in a separate escrow account up to 261,000 share of the Principal Stockholder Merger Consideration to the Stockholder Representative Account (with such particular amount to be specified by the Stockholders’ Representative) for expenses, professional fees and other amounts required to be paid by the Stockholder Representative appointed or the Stockholders pursuant to Section 10.1(l) Article VIII of the Merger Agreement shall automaticallyAgreement, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses provided that such portion of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Principal Stockholder Merger Consideration so set aside may only be sold in accordance with Section 10.1 2.2(j) of the Merger Agreement. The Stockholders’ If any of the shares that are set aside in the Stock Representative may from time Account are not used for expenses, professional fees and other amounts required to time deliver claims to be paid by the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Stockholder Representative or his affiliates or their respective Representatives are entitled the Stockholders pursuant to Section 10.1 Article VIII of the Merger Agreement.
11.4 At , then such shares shall be distributed to the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors Stockholders pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsthis Agreement.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Each Stockholder hereby irrevocably appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as (the “Stockholders’ Representative”) as such Stockholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of such Stockholder with respect to the transfer of such Stockholder’s shares of Company Stock to Buyer in accordance with the terms and provisions of this Agreement and to act on behalf of such Stockholder in any litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as such Stockholders’ Representative shall deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement, including, without limitation, the power:
(a) 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;
(b) to receive, hold, and deliver to Buyer the certificates evidencing shares of Company Stock accompanied by executed stock powers and any other documents relating thereto on behalf of such Stockholder;
(c) to execute and deliver all ancillary agreements, 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;
(d) to receive funds and give receipt for funds, including in respect of the Per Share Purchase Price, to distribute to the Stockholders their Per Share Purchase Price, and any adjustment thereto;
(e) to terminate this Agreement if the Stockholders are entitled to do so;
(f) to institute, defend, compromise or settle any indemnification claims pursuant to Article XI of this Agreement (excluding indemnification claims under Section 11.2(b) hereof (relating to representations and warranties set forth in Article IV hereof) or Section 7.14 hereof);
(g) to give and receive all notices and communications, communications to authorize delivery to Parent of Escrow Shares, Escrow Cash be given or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger received under this Agreement and comply to receive service of process in connection with orders any claims under this Agreement, including service of courts and awards of Arbitrator(sprocess in connection with arbitration; and
(h) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger which under this Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of may be taken by the Stockholders’ Representative and to indemnifydo or refrain from doing any further act or deed on behalf of such Stockholder which 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; provided, defend and hold harmless that the Stockholders’ Representative shall (i) take reasonable steps to keep the Stockholders informed; and his affiliates (ii) exercise the foregoing powers in a reasonable and their respective Representatives for certain losses, liabilities nondiscriminatory manner taking into account the interests of all Stockholders and expenses pursuant to Section 10.1 of the Merger Agreementtreating all Stockholders equally on a pro-rata basis. The death or incapacity of any Stockholder shall not terminate the agency and power of attorney granted hereby to the Stockholders’ Representative. The appointment of Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable and, notwithstanding the proviso at the end of the foregoing paragraph, Buyer and any other person may from time conclusively and absolutely rely, without inquiry, upon any action of Stockholders’ Representative, as the action of Stockholders in all matters referred to time deliver claims to herein. All actions, decisions and instructions of Stockholders’ Representative shall be conclusive and binding upon all of the Escrow Agent certifying Stockholders and itemizing no Stockholder shall have any cause of action against Buyer or Stockholders’ Representative for any action taken or not taken by Stockholders’ Representative in reasonable detail any amounts to which his role as such, except for causes of action against the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash with respect to any Escrow Contributors pursuant action or omission taken or made fraudulently or in bad faith with respect to Section 8.1 or Section 8.2such Stockholder. All payments, damages, costs, fees and subject to the retention of Escrow Shares and/or Escrow Cash expenses incurred by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant in connection with any dispute with Buyer under this Agreement shall be paid by the Stockholders in proportion to Section 11.3 from their respective percentage ownership of the Escrow Fund shares of Company Stock being sold hereunder and may be deducted by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal from any amounts otherwise payable to the aggregate amount of such claimsany Stockholder hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Euramax International PLC)
Stockholders’ Representative. 11.1 (a) By virtue of the adoption each Selling Stockholder’s execution and delivery of the Merger Agreement the Escrow Contributors this Agreement, each Selling Stockholder shall be deemed to have approved approved, among other matters, the indemnification provisions terms set forth in the Merger Agreement Section 9 and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as shall irrevocably appoint the Stockholders’ RepresentativeRepresentative as its agent for all purposes of this Agreement, including without limitation to give and receive notices and communicationscommunications in connection with a claim for indemnification, to authorize delivery to Parent amend or waive any provision of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveriesthis Agreement, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger this Agreement and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereunderindemnification claims, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant . The Purchaser shall be entitled to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become 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 all such successor. Any such successor shall become the “Stockholders’ Representative” for purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses . 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 indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives an amount of $60,000 (the “Expense Fund”), which will be used for certain lossesthe purposes of paying directly, liabilities and 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 10.1 of 1.2(a)(i). The Selling Stockholders will not receive any interest or earnings on the Merger AgreementExpense 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 may 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 time 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 time deliver claims to its creditors in the Escrow Agent certifying and itemizing in reasonable detail any amounts to which 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 or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 shall disburse the balance of the Merger Agreement.
11.4 At 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 the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Closing. The Stockholders’ Representative submitted pursuant 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 Section 11.3 from be executed and delivered as of the Escrow Fund by delivering to the date first above written. By:___/s/ ▇▇▇▇ Walker______________ Name:_Neal Walker________________ Title:__President and CEO___________ By:__/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ _______ Name:__ ▇▇▇▇▇▇ ▇. Christiano______ Title:____President________________ JAK1, LLC By:____/s/ Illegible________________ Name:_Illegible___________________ Title:__Manager___________________ JAK2, LLC By:___/s/ Illegible_________________ Name:_Illegible___________________ Title:__Manager___________________ JAK3, LLC By:___/s/ Illegible_________________ Name:_Illegible___________________ Title:__Manager___________________ SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in its capacity as Stockholders’ Representative and/or his designees Escrow Shares having By:___/s/ ▇. ▇▇▇▇ Koenig___________ Name:_W. ▇▇▇▇ Koenig____________ Title:__Managing Director_________ For the avoidance of doubt, the following Regulatory Milestone Payments shall be made only with respect to Patent Products, and shall not be owed or paid with respect to any Know-how Products or Additional Products. AA Oral Product: Upon the first occurrence of each of the following Regulatory Milestone events for an aggregate Agreement Conversion Price and/or Escrow Cash equal AA Oral Product, the Purchaser shall make the following one-time milestone payments to the aggregate amount Selling Stockholders (i.e., each milestone payment will only be paid one time): NDA filing in the United States $[***] FDA approval of such claims.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 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 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 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 an NDA in the United States $[***] Regulatory Approval in the European Union $[***] Regulatory Approval in Japan $[***]
Appears in 1 contract
Sources: Stock Purchase Agreement (Aclaris Therapeutics, Inc.)
Stockholders’ Representative. 11.1 By virtue (a) Insight Venture Partners, LLC (such person and any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the adoption Company Stockholders, and shall be exclusively authorized to act on behalf of the Merger Agreement the Escrow Contributors shall Company Stockholders and to take any and all actions required or permitted to be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as taken by the Stockholders’ RepresentativeRepresentative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article IX and with respect to any actions to be taken by the Stockholders’ Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to give and receive notices and communications, to (i) authorize the delivery to Parent of Escrow SharesCash to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to (ii) agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to any claims of Indemnitees hereunder, for indemnification and to (iii) take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant ). In all matters relating to Section 10.1(l) of the Merger Agreement shall automaticallythis Article IX, without any further action or notice, become the Stockholders’ Representative for shall be the only party entitled to assert the rights of the Company Stockholders, and the Stockholders’ Representative shall perform all purposes of this Agreement.
11.3 The the obligations of the Company Stockholders have agreed hereunder. The Parent Indemnified Parties shall be entitled to pay certain out-of-pocket costs rely on all statements, representations and expenses decisions of the Stockholders’ Representative and to indemnify, defend and hold harmless Representative.
(b) The Company Stockholders shall be bound by all actions taken by the Stockholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below and no Company Stockholder shall have the right to object to any action taken hereunder. The Stockholders’ Representative may but is not required to communicate with the Company Stockholders with respect to any action taken or not taken hereunder. The Stockholders’ Representative shall at all times act in his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant or her capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to Section 10.1 be in the best interest of the Merger Company Stockholders. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement. The Stockholders’ Representative may from time consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not have any duty to time deliver claims ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agent certifying and itemizing Agreement. As to any matters not expressly provided for in reasonable detail any amounts to which this Agreement or the Escrow Agreement, the Stockholders’ Representative shall not exercise any discretion or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementtake any action.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, (c) Each Company Stockholder shall indemnify and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of hold harmless and reimburse the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund and against such Company Stockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by delivering to the Stockholders’ Representative and/or his designees arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement or the Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal Agreement.
(d) Notwithstanding anything to the aggregate amount contrary herein or in the Escrow Agreement, the Stockholders’ Representative is not authorized to, and shall not, accept on behalf of any Company Stockholder any merger consideration to which such claimsCompany Stockholder is entitled under this Agreement and the Stockholders’ Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Stockholder unless the Stockholders’ Representative is expressly authorized to do so in a writing signed by such Company Stockholder.
Appears in 1 contract
Sources: Merger Agreement (Ariba Inc)
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of the Merger Agreement the Escrow Contributors "Stockholders' Representative" shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of mean Jose▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ any person appointed as a successor Stockholders' Representative pursuant to Section 1.06(b) hereof.
(b) During the 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 incapacitated, resigns or is 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 Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Majority of any successor Stockholders' Representative shall be provided to GRS promptly after it shall have been effected.
(c) The Stockholders' Representative shall be authorized to take any action and 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 on their behalf with such changes or amendments thereto as the Stockholders’ Representative, ' Representative shall determine to give be necessary or desirable in his sole and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property absolute discretion. Any party receiving an Instrument from the Escrow Fund, Stockholders' Representative shall have the right to object to rely in good faith upon such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderInstrument, and to take all actions necessary act in accordance with the Instrument without independent investigation.
(d) GRS shall have no liability to any Stockholder or appropriate in otherwise arising out of the reasonable judgment acts or omissions of the Stockholders’ ' Representative for or any disputes among the accomplishment of Stockholders or with the foregoingStockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders' Representative to satisfy any obligations it might have to the Stockholders under this Agreement, any agreement referred to herein or otherwise.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(e) of the Merger Agreement The Stockholders shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ ' Representative from and his affiliates against any and their respective Representatives for certain lossesall claims, liabilities demands, actions, suits, causes of action, damages, costs and expenses pursuant to Section 10.1 (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or brought against the Stockholders' Representative by any person arising out of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative acts or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims omissions of the Stockholders’ ' Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to or any disputes among the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to , unless such Claims allegedly occurred as a result of the aggregate amount of such claimswillful misconduct or negligence by the Stockholders' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. 11.1 By (a) The Escrow Participants (by virtue of the adoption approval of the Merger Agreement and the adoption of this Agreement) hereby irrevocably nominate, constitute and appoint TC Group, L.L.C. as the agent and true and lawful attorney-in-fact of the Escrow Contributors shall be deemed Participants (the “Stockholders’ Representative”), with full power of substitution, to have approved the indemnification provisions set forth act in the Merger Agreement name, place and this Agreement stead of the Escrow Participants for purposes of executing any documents and the appointment of ▇▇▇▇ ▇▇▇▇▇ as taking any actions that the Stockholders’ RepresentativeRepresentative may, in its sole discretion, determine to give be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any adjustment to the consideration payable in connection with the Contemplated Transactions pursuant to Sections 1.7 and receive notices and communications1.8 or any claim for indemnification, to authorize delivery to Parent of Escrow Shares, Escrow Cash compensation or other property from reimbursement under Section 9 or under the Escrow Agreement. In that regard, the Stockholders’ Representative shall take any and all actions which it believes are necessary or appropriate under this Agreement for and on behalf of the Stockholders, as fully as if the Stockholders were acting on their own behalf, including executing this Agreement as Stockholders’ Representative and overseeing the Stockholders’ Representative Expense Fund, giving and receiving notices, instructions and communications permitted or required under this Agreement, interpreting this Agreement, authorizing payments to object be made with respect hereto or thereto, obtaining reimbursement as provided for herein of all out-of-pocket fees and expenses and other obligations of or incurred by the Stockholders’ Representative in connection with this Agreement, objecting to such deliveries, to agree agreeing to, negotiate, enter negotiating and entering into settlements and compromises of, demanding arbitration or other legal proceedings and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply complying with orders of courts and awards of Arbitrator(s) arbitrators, with respect to claims of Indemnitees hereundersuch claims, engaging counsel or accountants or other representatives in connection with the foregoing matters, and to take taking all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing. TC Group, L.L.C. hereby accepts its appointment as the Stockholders’ Representative.
11.2 Any successor Stockholders’ Representative appointed pursuant (b) The Escrow Participants (by virtue of their adoption of this Agreement) grant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Escrow Participants (in the name of any or all of the Escrow Participants 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, in performing its duties as contemplated by Section 10.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with the Contemplated Transactions, Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Sections 1.7 and 1.8 and each Parent Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 9 and the Escrow Agreement, and Parent and each other Parent 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 Escrow Participant by the Stockholders’ Representative or any individual acting on behalf of the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Escrow Participant by the Stockholders’ Representative or any individual acting on behalf of the Stockholders’ Representative, as fully binding upon such Escrow Participant. The provisions of this Section 10.1 shall be binding upon each Escrow Participant and the executors, heirs, legal representatives and successors of each Escrow Participant, and any references in this Agreement to an Escrow Participant or the Escrow Participants shall mean and include the successors to the Escrow Participants’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(c) The power of attorney granted in Section 10.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall survive the dissolution, death or incapacity of each Escrow Participant.
(d) In dealing with this Agreement and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative under this Agreement, (i) the Stockholders’ Representative shall not assume any, and shall incur no, responsibility to any Escrow Participant by reason of any error in judgment or other act or failure to act in connection with this Agreement, except for any act or failure to act which represents willful misconduct or bad faith, 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 error in judgment or other act or failure to act on the part of the Stockholders’ Representative pursuant to such advice shall not subject the Stockholders’ Representative to liability to any Escrow Participant. The Escrow Participants shall jointly and severally indemnify the Stockholders’ Representative and its respective partners, directors, officers, employees, agents and controlling persons and hold each of them harmless against and from any loss, liability or expense (including attorneys fees reasonably incurred or suffered as a result of the performance of its duties under this Agreement) incurred without willful misconduct or bad faith on its part and arising out of or in connection with the acceptance or administration of its duties hereunder. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid from the Stockholders’ Representative Expense Fund, then from proceeds otherwise subject to release from the Indemnity Escrow Fund to Escrow Participants to the extent the Stockholders’ Representative has submitted an Excess Expense Certificate (as defined in Section 10.1(g)) in accordance with Section 10.1(g) below, and thereafter shall be the responsibility of the Escrow Participants.
(e) Upon 30 days’ prior written notice to Parent, the Stockholders’ Representative shall have the right to resign in its sole discretion for any reason. If the Stockholders’ Representative shall resign or otherwise become unable to fulfill its responsibilities under this Section 10.1 or cease to function in its capacity as Stockholders’ Representative for any reason whatsoever, then Escrow Participants collectively holding greater than a 50% interest in the cash held in the Indemnity Escrow Fund shall, within 30 days thereof, appoint a successor and, promptly thereafter, shall notify Parent and the Escrow Agent of the identity of such successor. In any event, the Stockholders’ Representative shall continue to have all rights to indemnification provided in Section 10.1(d). Any such successor shall become the “Stockholders’ Representative” for purposes of this Agreement, including Sections 1.7, 1.8 and 9 and this Section 10.1. If for any reason there is no Stockholders’ Representative at any time, all references herein to the Stockholders’ Representative shall be deemed to refer to the Escrow Participants.
11.3 (f) All expenses incurred by the Stockholders’ Representative in connection with the performance of its duties as Stockholders’ Representative shall be borne and paid exclusively by the Escrow Participants. The Company Stockholders have agreed Stockholders’ Representative shall be entitled to pay certain withdraw amounts held in the Stockholders’ Representative Expense Fund in reimbursement for out-of-pocket costs fees and expenses (including legal, accounting and other advisors’ fees and expenses, if applicable) incurred by the Stockholders’ Representative in connection with this Agreement and the transaction contemplated hereby. The Stockholders’ Representative shall be entitled to hold the Stockholders’ Representative Expense Fund until the date that is 90 days after such time as all amounts remaining in the Indemnity Escrow Fund have been distributed pursuant to Section 9.7. Upon any release of funds by the Stockholders’ Representative from the Stockholders’ Representative Expense Fund, (other than to cover expenses of the Stockholders’ Representative and to indemnifyas set forth above), defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain lossesshall release to each Escrow Participant, liabilities and expenses pursuant with respect to Section 10.1 each share of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims Company Capital Stock held by such Escrow Participant immediately prior to the Effective Time and each share of Company Common Stock subject to an In-the-Money Company Option held by such Escrow Agent certifying and itemizing Participant immediately prior to the Effective Time, an amount in reasonable detail any amounts cash determined by multiplying the Aggregate Proceeds Contribution Fraction with respect to which such share of Company Capital Stock or such share of Company Common Stock subject to such In-the-Money Company Option by the amount of funds to be released from the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementExpense Fund.
11.4 At (g) In the time of event that the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, Stockholders’ Representative shall expend amounts in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims excess of the Stockholders’ Representative submitted pursuant Expense Fund in accordance with the terms and conditions of this Section 10.1, the Stockholders’ Representative shall be entitled deliver to Section 11.3 Parent written notice certifying the amount of such expenses in excess of the Stockholders’ Representative Expense Fund payable by the Stockholders (an “Excess Expenses Certificate”). Following receipt by Parent of an Excess Expenses Certificate, prior to the distribution of any funds to Escrow Participants from the Indemnity Escrow Fund by delivering Fund, Parent shall reimburse the amount certified in the Excess Expenses Certificate to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal (up to the aggregate amount of funds otherwise to be distributed from the Indemnity Escrow Fund) and shall deduct a corresponding amount from such claimsamount otherwise to be distributed. Parent shall be entitled to rely on the amount set forth in any Excess Expenses Certificate without investigation or liability whatsoever, and the payment of any amount to the Stockholders’ Representative in accordance with this Section 10.1(g) shall completely discharge Parent’s obligations with respect to such amount.
(h) Any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 10.1 shall be effective and absolutely binding on each Escrow Participant notwithstanding any contrary action of, or direction from, any Escrow Participant.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of (a) Effective upon the approval and adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Merger by COAH Stockholders, COAH’s stockholders will be conclusively presumed to have appointed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ . as agent and attorney-in-fact (the “Stockholders’ RepresentativeRepresentatives”) for and on behalf of each COAH Stockholder, to (i) give and receive notices and communicationscommunications in connection with this Agreement, to authorize delivery to Parent of Escrow Sharesand the Merger, Escrow Cash or other property (ii) receive payments from the Escrow FundParent under this Agreement, to object to such deliveries(iii) execute and deliver all ancillary agreements, to agree to, negotiate, enter into settlements certificates and compromises of, and demand dispute resolution pursuant to Section 10 documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the Merger transactions contemplated by this Agreement, (iv) receive service of process in connection with any claims under this Agreement and comply with orders of courts and awards of Arbitrator(s(v) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of any of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) . All actions of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative Representatives shall be in writing signed by the above-named individuals, or their successors, acting in his, her or its capacity as Stockholders’ Representatives. Each COAH Stockholder shall be bound by all actions taken by the Stockholders’ Representatives consistent with this Section 12.14 in his, her, or its capacity as the Stockholders’ Representatives, and neither the Parent, Merger Sub nor the Surviving Corporation shall be liable to any of COAH Stockholders for all purposes of this Agreementany 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.
11.3 (b) The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses appointment of the Stockholders’ Representative shall be deemed coupled with an interest and to indemnifyshall be irrevocable, defend and hold harmless the Parent, Merger Sub, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant in all matters referred to Section 10.1 of the Merger Agreementherein. The Stockholders’ Representative shall not be responsible to COAH Stockholders for any loss or damages COAH Stockholders may from time to time deliver claims to suffer by the Escrow Agent certifying and itemizing in reasonable detail any amounts to which performance by the Stockholders’ Representative of its duties under this Agreement, other than loss or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 damage arising from willful violation of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash law by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund of its duties under this Agreement.
(c) If any COAH Stockholder should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal pursuant to this Section 12.14 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not such COAH Stockholder, the aggregate amount Parent or the Surviving Corporation shall have received notice of such claimsdeath, incapacity, termination or other event.
Appears in 1 contract
Sources: Merger Agreement (Anoteros, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of (a) The Indemnitors hereby irrevocably appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as their agent for purposes of Section 9 (the “Stockholders’ Representative”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative. After the Closing, Parent shall be entitled to give deal exclusively with the Stockholders’ Representative on all matters relating to Section 9, and receive notices shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported by the Stockholders’ Representative to be executed on behalf of any Indemnitor by the Stockholders’ Representative, and communicationson any other action taken or purported by the Stockholders’ Representative to be taken on behalf of any Indemnitor by the Stockholders’ Representative, as fully binding upon such Indemnitor. If the Stockholders’ Representative shall die, become disabled or otherwise be unable to authorize delivery to fulfill his responsibilities as agent of the Indemnitors, then the Indemnitors shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of Escrow Sharesthe identity of such successor. Any such successor shall become the “Stockholders’ Representative” for purposes of Section 9 and this Section 10.1. If for any reason there is no Stockholders’ Representative at any time, Escrow Cash or other property from all references herein to the Escrow Fund, Stockholders’ Representative shall be deemed to object refer to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 the Indemnitors.
(b) By virtue of the Merger Agreement approval of the adoption of this Agreement, the Indemnitors grant to the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and comply file on behalf of the Indemnitors (in the name of any or all of the Indemnitors or otherwise) any and all documents and take any actions that the Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate, and, in the case of any document, in such forms and containing such provisions as the Stockholders’ Representative may, in his sole discretion, determine to be appropriate, in performing his duties as contemplated by Sections 1.11, 9 or 10.1(a).
(c) The Indemnitors recognize and intend that the power of attorney granted in Section 10.1(a): (i) is coupled with orders an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall survive the death or incapacity of courts and awards each of Arbitrator(sthe Indemnitors.
(d) with respect If the Stockholders’ Representative shall die, become disabled or otherwise be unable or unwilling to claims of Indemnitees fulfill his responsibilities hereunder, the Indemnitors shall, by consent of the Company Stockholders that held at least a majority of the shares of Company Capital Stock (on an as-converted basis) immediately prior to the Effective Time, within ten (10) days after such death or disability, a notice of resignation or withdrawal, appoint a successor to the Stockholders’ Representative and immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the Stockholders’ Representative as Stockholders’ Representative hereunder.
(e) In performing the functions specified in this Agreement, the Stockholders’ Representative shall not be liable to take all actions necessary or appropriate any Indemnitors in the reasonable judgment absence of gross negligence or willful misconduct on the part of the Stockholders’ Representative for (and any act done or omitted pursuant to the accomplishment advice of counsel shall be conclusive evidence of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) absence of gross negligence or willful misconduct). By virtue of the Merger Agreement shall automaticallyapproval of the adoption of this Agreement, without any further action or notice, become each Indemnitor agrees to indemnify and hold harmless the Stockholders’ Representative for against any and all purposes of liabilities, losses, damages, claims, costs or expenses incurred by the Stockholders’ Representative in carrying out his duties under this Agreement and under the Escrow Agreement.
11.3 The Company Stockholders have agreed to pay certain , including any and all out-of-pocket costs and expenses of and legal fees and other legal costs reasonably incurred by the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementRepresentative. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering If not paid directly to the Stockholders’ Representative and/or his designees by the Indemnitors, such liabilities, losses, damages, claims, costs and expenses may be recovered by the Stockholders’ Representative from the Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal Amount otherwise distributable to the aggregate amount Indemnitors following the Escrow Termination Date pursuant to the terms of the Escrow Agreement, at the time of distribution, and such recovery will be made from the Indemnitors according to their respective pro rata interests in the Escrow Fund. Parent shall have no responsibility for the payment of such claimscosts or expenses and shall not be responsible for collecting any amounts payable to the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
Stockholders’ Representative. 11.1 By virtue (a) In order to efficiently administer the transactions contemplated hereby, including (i) the payment of the adoption Cash Payment, (ii) the waiver of any condition to the obligations of the Merger Agreement Company Stockholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Company Stockholders may be required to indemnify the Buyer and/or the Company pursuant to the Escrow Contributors shall be deemed to have approved Agreement, Deed of Tax and Article VII below, the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Company Stockholders hereby designate ▇.▇▇▇ ▇. ▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Company Stockholders hereby authorize the Stockholders’ Representative' 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 and communicationsrequired to be given under this Agreement, to authorize delivery to Parent the Deed of Escrow Shares, Escrow Cash Tax or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofAgreement, and demand dispute resolution pursuant (iv) to Section 10 take any and all additional action as is contemplated to be taken by or on behalf of the Merger Agreement Company Stockholders by the terms of this Agreement, the Deed of Tax and comply with orders of courts and awards of Arbitrator(sthe Escrow Agreement.
(c) with respect In the event that the Stockholders' Representative dies, becomes unable to claims of Indemnitees hereunderperform his responsibilities hereunder or resigns from such position, and the Company Stockholders holding, prior to take all actions necessary or appropriate in the reasonable judgment Closing, a majority of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant Shares as set forth on Schedule I attached hereto shall select another representative to Section 10.1(l) of the Merger Agreement ---------- fill such vacancy and such substituted representative shall automatically, without any further action or notice, become be deemed to be the Stockholders’ ' Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto.
11.3 The (d) All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and the Buyer relating to the determination of the Acquisition Amounts, the defense 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, shall be binding upon all of the Company Stockholders and no Company Stockholder shall have agreed the right to pay certain out-of-pocket costs object, dissent, protest or otherwise contest the same.
(e) By his execution of this Agreement, each Company Stockholder agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions and expenses decisions of the Stockholders’ ' Representative and as to indemnifythe determination of the Acquisition Amounts, defend and hold harmless the settlement of any claims for indemnification by the Buyer and/or the Company pursuant to Article VII below or the Deed of Tax or any other actions required or permitted to be taken by the Stockholders’ ' Representative hereunder, and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 no party hereunder shall have any cause of action against the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims Buyer to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which extent the Stockholders’ Representative Buyer has relied upon the instructions or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions of the Stockholders’ ' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative submitted shall be conclusive and binding upon all of the Company Stockholders and no Company 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, except for fraud or wilful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 1.9 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company 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
(vii) the provisions of this Section 1.9 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholder's rights hereunder, whether pursuant to Section 11.3 from testamentary disposition, the Escrow Fund laws of descent and distribution or otherwise.
(f) The Stockholders' Representative shall be remunerated for his services his usual professional and other charges for such services as may be provided by delivering him at a rate not to exceed (Pounds)500 per day plus VAT (if applicable). All fees and expenses incurred by the Stockholders’ ' Representative and/or his designees Escrow shall be paid by the Company Stockholders in proportion to their ownership of the Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.as set forth in Schedule I attached hereto. ----------
Appears in 1 contract
Sources: Stock Purchase Agreement (Renaissance Solutions Inc)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of The Stockholders hereby appoint ▇▇▇▇ ▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the 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, 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, including, without limitation, the power:
2.4.1 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;
2.4.2 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;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 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 her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to 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 Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to give and receive notices and communicationsthe 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 authorize delivery to Parent of Escrow Sharesthis Section 2.4 shall be as valid as if such death or incapacity, Escrow Cash termination or other property from event had not occurred, regardless of whether or not the Escrow FundStockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to object be made or delivered by Parent, Federal or ATS to such deliveries, the Stockholders shall be made to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment benefit of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative for all purposes shall do or cause to be done by virtue of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of her appointment as the Stockholders’ Representative and to indemnify, defend and hold harmless of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant believes to Section 10.1 be in the best interest of the Merger Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative may from time to time deliver claims to and her heirs and personal or legal representatives shall be held harmless by the Escrow Agent certifying Stockholders from, and itemizing indemnified against any loss or damages arising out of or in reasonable detail connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any amounts to which of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims substitution of the Stockholders’ Representative submitted pursuant Representative. Notwithstanding anything to Section 11.3 from the Escrow Fund by delivering to contrary herein, the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the aggregate amount of such claimsextent of, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Caci International Inc /De/)
Stockholders’ Representative. 11.1 By virtue (a) As of the adoption date of this Agreement, each Stockholder hereby irrevocably appoints Insight Venture Partners, LLC (the Merger Agreement “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 Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ Agreement) as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions Representative shall deem necessary or appropriate in connection with the reasonable judgment 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) The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, Merger Subs and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. Any action taken by the Stockholders’ Representative must be in writing and must be signed by the Stockholders’ Representative. All notices required to be made or delivered by Buyer or Merger Subs to the Company (prior to the Effective Time) or the Stockholders described above shall be made to the Stockholders’ Representative for the accomplishment benefit of such Stockholder and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or Merger Subs, as applicable, to such Stockholder with respect thereto. By their appointment of the foregoing.
11.2 Any successor Stockholders’ Representative, the Stockholders hereby confirm all that the Stockholders’ Representative appointed pursuant shall do or cause to Section 10.1(l) 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 automatically, without any further action be read into this Agreement or notice, become shall otherwise exist against the Stockholders’ Representative. The Stockholders hereby agree (a) to reimburse the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses incurred by the Stockholders’ Representative under this Agreement and the Escrow Agreement, including fees for any attorneys or 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 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 or reasonably believed to be in the scope of the Stockholders’ Representative’s authority, provided that he or his agent or assign has not acted with intentional misconduct or fraud in taking such action.
(c) The Stockholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to indemnifyit by the Company, defend and hold harmless any Stockholder, Buyer, Merger Subs, or any other evidence deemed by the Stockholders’ Representative to be reliable, and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are shall be entitled pursuant to Section 10.1 act on the advice of the Merger Agreementcounsel selected by it.
11.4 At (d) In the time of event that the distribution of any Escrow Shares Stockholders’ Representative dies, becomes legally incapacitated or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, resigns (by providing Buyer and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant a minimum of 60 day advance written notice) from its position as Stockholders’ Representative, a successor Stockholders’ Representative (who shall either be a Stockholder or another Person reasonably acceptable to Section 8.1 Buyer) shall be appointed in writing by a majority in interest of the Stockholders, such appointment to become effective upon the delivery of executed counterparts of such writing to Buyer and the Escrow Agent, together with an acknowledgement signed by the successor Stockholders’ Representative named in such writing that he, she or Section 8.2, as it accepts the case may be, in respect responsibility of Indemnification Demands made successor Stockholders’ Representative and agrees to perform and be bound by any Parent Indemniteesall provisions of this Agreement and the Escrow Agreement applicable to the Stockholders’ Representative. Failing such appointment, the Escrow Agent shall first pay claims or any Stockholder may apply to a court of competent jurisdiction for the appointment of a successor Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsRepresentative.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed (a) The Stockholders’ Representative is hereby appointed and authorized to have approved the indemnification provisions set forth in the Merger Agreement full power and authority to represent each of, and take all actions under this Agreement and the appointment Transaction Documents that are to be taken by, the Company Stockholders and holders of ▇▇▇▇ ▇▇▇▇▇ as Cash-Out Options, whether collectively or individually, or by the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s(x) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of taken by the Stockholders’ Representative for hereunder and thereunder shall be binding upon all the accomplishment Company Stockholders and their successors and assigns as if expressly confirmed and ratified in writing by each of them and (y) no Company Stockholder or holder of Cash-Out Options shall have a right to object, dissent, protest or otherwise contest the foregoingsame. Any action to be taken by the Company Stockholders or holder of Cash-Out Options collectively under this Agreement or the Transaction Documents shall be taken by the Stockholders’ Representative.
11.2 Any successor (b) The Stockholders’ Representative appointed pursuant is hereby authorized to:
(i) receive all notices or documents given or to Section 10.1(l) be given to any of the Merger Agreement shall automaticallyCompany Stockholders, without any further action holder of Cash-Out Options or notice, become the Stockholders’ Representative for all purposes pursuant hereto or to any Transaction Document or in connection herewith or therewith and to receive and accept service of legal process in connection with any suit or proceeding arising under any Transaction Document;
(ii) engage counsel and such accountants and other advisors and incur such expenses in connection with any Transaction Document or the transactions contemplated hereby or thereby as the Stockholders’ Representative may in its sole discretion deem appropriate;
(iii) after the date of this Agreement., take such action as the Stockholders’ Representative may, in its sole discretion, deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Parent contained in this Agreement or in any document delivered by Parent pursuant hereto; (B) taking such other action as the Stockholders’ Representative is authorized to take under any Transaction Document; (C) receiving all documents or certificates and making all determinations, in its capacity as Stockholders’ Representative, required under any Transaction Document; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by any Transaction Document, including, without limitation, the defense and/or settlement of any Claims for which indemnification is sought pursuant to this ARTICLE VIII and any waiver of any obligation of Parent; and
11.3 The Company Stockholders have agreed (iv) interpret all of the terms and provisions of any Transaction Document, authorize payments to pay certain be made with respect hereto or thereto, obtain reimbursement as provided for herein for all out-of-pocket costs fees and expenses and other obligations of or incurred by the Stockholders’ Representative in connection with this Agreement and the Transaction Documents, defend all indemnity claims 69 pursuant to this Agreement, consent to, compromise or settle all such claims for indemnification by Parent and/or any Parent Indemnitee, conduct negotiations with Parent and/or any Parent Indemnitee and their agents regarding such claims, dealing with Parent and/or any Parent Indemnitee under this Agreement, take any all other actions specified in or contemplated by any Transaction Document, and engage counsel, accountants or other representatives in connection with the foregoing matters.
(c) Without limiting the generality of Section 8.7(a), the Stockholders’ Representative is hereby authorized to have the full power and authority to interpret all the terms and provisions of any Transaction Document and to consent to any amendment hereof or thereof on behalf of the Company Stockholders and holders of Cash-Out Options in its capacity as Stockholders’ Representative.
(d) The Stockholders’ Representative shall have no duties or liability to the Company Stockholders or holders of Cash-Out Options with respect to any action taken, decision made or instruction given by the Stockholders’ Representative in connection with the any Transaction Document.
(e) The Company Stockholders hereby agree, in accordance with the Owner’s Percentage Interest, to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates any of its Affiliates and any of their respective Representatives for certain lossesheirs, successors, assigns, partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, harmless against all liabilities incurred by them, other than Liabilities resulting from the Stockholders’ Representative’s fraud or willful misconduct in connection with his performance under any Transaction Document. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses pursuant to Section 10.1 of enforcing this right of indemnification) shall be paid by the Merger AgreementCompany Stockholders and holders of Cash-Out Options and Parent shall not have any liability therefor. The Stockholders’ Representative may from time to time deliver claims to may, in all questions arising under this Agreement, rely on the Escrow Agent certifying advice of counsel and itemizing for anything done, omitted or suffered in reasonable detail any amounts to which good faith by the Stockholders’ Representative in accordance with such advice, the Stockholders’ Representative shall not be liable to the Company Stockholders, holders of Cash-Out Options or his affiliates any other Person. In no event shall the Stockholders’ Representative be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages.
(f) Subject to any applicable privileges, the Stockholders’ Representative shall have reasonable access to information of and concerning any indemnity claims of Parent and/or any Parent Indemnitee pursuant to this Agreement and which is in the possession, custody or control of the Company Stockholders and/or Parent and the reasonable assistance of the Company Stockholders and holders of Cash-Out Options (and their respective Representatives are entitled successors’ and assigns’) for purposes of performing the Stockholders’ Representative duties under this Agreement or the Transaction Documents and exercising his rights under this Agreement and the Transaction Documents, including for the purpose of evaluating any indemnity claims of the Company Stockholders and or holders of Cash-Out Options pursuant to Section 10.1 this ARTICLE VIII.
(g) In the performance of its duties hereunder, the Stockholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed by its to be genuine, accurate as to content and signed by any Company Stockholder and any holder of Cash-Out Options or any other party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(h) The Company Stockholders collectively holding over a majority of the Merger AgreementCompany Capital Stock on an as-converted, fully diluted basis immediately prior to the Closing shall have the right at any time following the Closing to remove the then-acting Stockholders’ Representative and/or to appoint a successor Stockholders’ Representative upon the resignation or removal of the Stockholders’ Representative; provided, however, that neither the removal/resignation of the then acting Stockholders’ Representative nor the appointment of a successor Stockholders’ Representative shall be effective until the delivery to Parent of executed counterparts of a writing signed by Company Stockholders collectively holding over a majority of the Company Capital Stock on an as-converted, fully diluted basis immediately prior to the Closing with respect to such removal, resignation and appointment, together with an acknowledgement signed by the successor Stockholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Stockholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to the Stockholders’ Representative. Each successor Stockholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Stockholders’ Representative, and in the Transaction Documents and shall be deemed to include any interim or successor Stockholders’ Representative.
11.4 At (i) Prior to Closing, the time Stockholders’ Representative shall be permitted to assign its duties hereunder with the prior written consent of Parent and the distribution of any Escrow Shares or Escrow Cash Company, which consents shall not be unreasonably withheld. Prior to any Escrow Contributors pursuant Closing, the Company can agree to pay a successor Stockholders’ Representative a fee for services to be performed by such Stockholders’ Representative under this Agreement, which fee shall be in cash from the Company prior to the Closing.
(j) Subject to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees8.7(h), the Escrow Agent shall first pay claims appointment of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund hereunder is irrevocable and any action taken by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal pursuant to the aggregate amount authority granted in this Section 8.8 shall be effective and absolutely binding as the action of such claimsthe Stockholders’ Representative under any Transaction Document.
Appears in 1 contract
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/)
Stockholders’ Representative. 11.1 By virtue (a) Each holder of the adoption of the Merger Agreement the Escrow Contributors shall Company Capital Stock, by signing this Agreement, designates Tyler to be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement. The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
11.3 The Company (b) LifeMinders shall be entitled to rely upon any communications or writings given or executed by the Stockholders' Representative. All notices to be sent to the Stockholders have agreed pursuant to pay certain out-of-pocket costs this Agreement may be addressed to the Stockholders' Representative and expenses any notices so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders’ ' Representative is authorized to accept notice on behalf of the Stockholders pursuant thereto.
(c) The Stockholders' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Stockholder, with full power in his name and one his behalf to act according to the terms of this Agreement in the absolute discretion of the Stockhold- ers' Representative; and in general to do all things and to indemnifyperform all acts including, defend without limitation, executing, delivering and/or amending all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted subject to the interest of the Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) The Stockholders shall severally and pro rata, in accordance with their pro rata portion, of the Merger Consideration, indemnify and hold harmless the Stockholders’ ' Representative from and his affiliates and their respective Representatives for certain lossesagainst any loss, liabilities and expenses pursuant to Section 10.1 of liability or expense incurred without gross negligence or bad faith on the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims part of the Stockholders’ ' Representative submitted pursuant to Section 11.3 from and arising out of or in connection with the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount acceptance or administration of such claimstheir duties hereunder under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lifeminders Inc)
Stockholders’ Representative. 11.1 (a) By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and adopting this Agreement and entering into the appointment Stockholders’ Representative Agreement in substantially the form of ▇▇▇▇ Exhibit E attached hereto (the “Stockholders’ Representative Agreement”), the Stockholders hereby and thereby irrevocably constitute and appoint Dr. E▇▇▇▇▇ de J▇▇▇, Jr. as the Stockholders’ Representative, effective as of the Effective Time, for the purpose of performing and consummating the transactions contemplated by this Agreement, the Escrow Agreement and the Registration Rights Agreement. The appointment of such Stockholders’ Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and such Stockholders’ Representative is hereby authorized and directed to give perform and consummate all of the transactions contemplated to be performed by the Stockholders by this Agreement, the Escrow Agreement and the Registration Rights Agreement. Not by way of limiting the authority of the Stockholders’ Representative, each and all of the Stockholders, by their adoption of this Agreement, for themselves and their respective heirs, executors, administrators, successors and assigns hereby authorize the Stockholders’ Representative to:
(i) effect any amendment to this Agreement, the Escrow Agreement or the Registration Rights Agreement which the Stockholders’ Representative deems necessary or desirable;
(ii) execute and deliver on their behalf all documents and instruments which may be executed and delivered pursuant to this Agreement, the Escrow Agreement or the Registration Rights Agreement, except that the documents with respect to the transfer of InnoRx Common Stock shall be personally executed by the Stockholders;
(iii) make and receive notices and communicationsother communications pursuant to this Agreement, to authorize delivery to Parent the Escrow Agreement or the Registration Rights Agreement and service of Escrow Shares, Escrow Cash process in any legal action or other property from proceeding arising out of or related to this Agreement, the Escrow FundAgreement or the Registration Rights Agreement or any of the transactions hereunder or thereunder;
(iv) defend, settle or compromise any dispute, claim, action, suit or proceeding arising out of or related to object to such deliveriesthis Agreement, to agree tothe Escrow Agreement or the Registration Rights Agreement or any of the transactions hereunder or thereunder, negotiateincluding, enter into settlements and compromises ofwithout limitation, and demand dispute resolution pursuant to Section 10 the calculation of the Merger Consideration or the defense, settlement or compromise of any claim, action or proceeding for which SurModics has claimed that it is entitled to indemnification or payment of Damages;
(v) pay expenses incurred or which may be incurred by or on behalf of the Stockholders in connection with this Agreement, the Escrow Agreement and comply with orders or the Registration Rights Agreement or any of courts and awards of Arbitrator(sthe transactions hereunder or thereunder; and
(vi) with respect to claims of Indemnitees hereunder, and to take all actions action necessary or appropriate in connection with enforcing the reasonable judgment obligations of SurModics, Merger Sub and InnoRx to the Stockholders under this Agreement, the Registration Rights Agreement and the Escrow Agreement and to take any and all action necessary or appropriate in connection therewith. In the event of the death or disability of the Stockholders’ Representative, a majority in interest of the remaining Stockholders shall promptly appoint a replacement. No person serving as the Stockholders’ Representative under this Agreement shall have any personal liability to any Stockholder or a Stockholder’s permitted assigns or to SurModics, Merger Sub or their affiliates, with respect to any action taken, suffered or omitted by him hereunder as a Stockholders’ Representative while acting in good faith and in the absence of gross negligence or willful misconduct, and any act done, suffered or omitted pursuant to the advice of counsel shall be deemed hereunder to have been done in good faith, except to the extent that such person may have liability as a Stockholder hereunder. The other terms and conditions of the appointment by the Stockholders of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become are set forth in the Stockholders’ Representative for all purposes of this Agreement.
11.3 (b) Any claim, action, suit, or other proceeding, whether through arbitration or through court action and whether in law or equity, to enforce any right, benefit or remedy granted to Stockholders under this Agreement or the Escrow Agreement or Registration Rights Agreement shall be asserted, brought, prosecuted or maintained only by the Stockholders’ Representative. The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses shall be bound by any determination in favor of or against the Stockholders’ Representative and to indemnify, defend and hold harmless or the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 terms of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts settlement or release to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementshall become a party.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of (c) Any notice given the Stockholders’ Representative submitted pursuant will constitute notice to Section 11.3 from each and all of the Escrow Fund by delivering Stockholders at the time the notice is given to the Stockholders’ Representative. Any action taken by, or instruction received from, the Stockholders’ Representative and/or his designees will be deemed to be action be, or notice or instruction from, each and all of the Stockholders. SurModics may, and the Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to Agent will, disregard any notice or instruction received directly from any of the aggregate amount of such claimsStockholders other than the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Surmodics Inc)
Stockholders’ Representative. 11.1 By virtue (a) In order to efficiently administer the transactions contemplated hereby occurring after the Effective Time, including without limitation 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, 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 Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Agreement, to designate Robert B. Abbott a▇ ▇▇▇▇▇ ▇▇▇▇▇ as ▇▇▇▇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 communications(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 authorize delivery to Parent perform his responsibilities hereunder, is removed by the Company Stockholders who beneficially own a majority of the Escrow Shares, Escrow Cash or other property resigns from such position, the Company Stockholders who beneficially own a majority of the Escrow Fund, Shares are authorized to object and shall select another representative to fill such deliveries, vacancy and such substituted representative shall be deemed to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of be the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ ' Representative for all purposes of this AgreementAgreement 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.
11.3 (d) All decisions and actions by the Stockholders' Representative, including without limitation any agreement between the Stockholders' Representative and Acquiror relating to the defense 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, shall be binding upon all of the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The Stockholders' Representative shall not have any liability to any of the parties hereto or the Company Stockholders for any act done or omitted hereunder as Stockholders' Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders have agreed to pay certain out-of-pocket shall severally indemnify the Stockholders' Representative and hold it harmless 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 its duties 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; PROVIDED, HOWEVER, in no event shall the aggregate amount reimbursed out of the Escrow Shares exceed $100,000.00.
(f) Upon approval of the Merger and the adoption of this Agreement, each Company Stockholder shall be deemed, whether or not he, she or it voted in favor of this Agreement, to agree, in addition to the foregoing, that:
(i) Acquiror and/or the Surviving Corporation shall be entitled to rely conclusively on the instructions and decisions of the Stockholders’ ' Representative and as to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives settlement of any claims for certain losses, liabilities and expenses indemnification by Acquiror and/or the Surviving Corporation pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time 8 hereof, or any other actions required or permitted to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which be taken by the Stockholders’ ' Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2hereunder, and subject to no party hereunder shall have any cause of action against Acquiror and/or the retention of Escrow Shares and/or Escrow Cash by Surviving Corporation for any action taken in reliance upon the Escrow Agent pursuant to Section 8.1 instructions or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions of the Stockholders’ ' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative submitted as authorized herein shall be conclusive and binding upon all of the Company Stockholders and no Company 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, except for the bad faith of the Stockholders' Representative in connection with the matters described in this Section 1.8;
(iii) the provisions of this Section 1.8 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company 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 1.8 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 of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholder's rights hereunder, whether pursuant to Section 11.3 from testamentary disposition, the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount laws of such claimsdescent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) Stockholders' Representative may be changed by Target Stockholders from time to time upon not less than 10 days' prior written notice to Acquiror; provided that Stockholders' Representative may not be removed unless holders of a majority in interest of the adoption Escrow Fund agree to such removal and to the identity of the Merger Agreement the Escrow Contributors substituted agent. No bond shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment required of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ ' Representative, and Stockholders' Representative shall not receive compensation for his or her services. Notices or communications to give or from Stockholders' Representative shall constitute notice to or from each of the Target Stockholders. Stockholders' Representative shall be entitled to submit a claim and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property reimbursement from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative Fund for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain reasonable, documented out-of-pocket costs expenses incurred by Stockholders' Representative as a result of acting as the Stockholders' Representative; provided, however, that such right to reimbursement shall be subordinate to Acquiror's claims on the Escrow Fund, if any, and shall be paid only after all such claims have been satisfied. Any such reimbursement shall be paid in Escrow Shares out of the Escrow Fund. For purposes of such reimbursement of Stockholders' Representative, Escrow Shares shall be valued at the at the average closing price of the Acquiror's Common Stock shares (as quoted on NASDAQ as reported in The Wall Street Journal) for the ten trading days immediately prior to the date of any such reimbursement.
(b) Stockholders' Representative shall not be liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith and in the exercise of reasonable judgment. Target Stockholders on whose behalf Escrow Shares were contributed to the Escrow Fund shall severally indemnify Stockholders' Representative and hold Stockholders' Representative harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of Stockholders' Representative and arising out of or in connection with the acceptance or administration of Stockholders' Representative's duties hereunder, including the reasonable fees and expenses of the any legal counsel retained by Stockholders’ ' Representative.
(c) Stockholders' Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 shall act by vote or written action or consent of a majority of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 members of the Merger Agreement.
11.4 At Committee. A decision, act, consent or instruction of Stockholders' Representative shall constitute a decision of all Target Stockholders and shall be final, binding and conclusive upon each of such stockholders, and Escrow Agent, Acquiror, Surviving Corporation, and all other Indemnified Persons may rely upon any such decision, act, consent or instruction of Stockholders' Representative as being the time decision, act, consent or instruction of the distribution of each and every such Target Stockholder. Escrow Agent, Acquiror, Surviving Corporation, and all other Indemnified Persons are hereby relieved from any Escrow Shares or Escrow Cash liability to any Escrow Contributors pursuant to Section 8.1 person for any acts done by them in accordance with such decision, act, consent or Section 8.2, and subject to the retention instruction of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims' Representative.
Appears in 1 contract
Sources: Merger Agreement (Netcentives Inc)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and approving this Agreement and the appointment transactions contemplated hereby and delivering a Letter of ▇▇▇▇ ▇▇▇▇▇ Transmittal, each Company Stockholder shall have irrevocably authorized, directed and appointed the Stockholders’ Representative to act as sole and exclusive agent, attorney-in-fact and representative of the Company Stockholders, with full power of substitution with respect to all matters under this Agreement and the 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, contesting and settling any and all claims for indemnification pursuant to ARTICLE VI, resolving any other disputes hereunder, performing the duties expressly assigned to the Stockholders’ Representative hereunder and to engage and employ agents and representatives, retain and use the 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 indemnification under ARTICLE VI and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative, to give shall be absolutely and receive notices and communicationsirrevocably binding on each Company Stockholder as if such Company Stockholders personally had taken such action, to authorize delivery to Parent of Escrow Sharesexercised such rights, Escrow Cash power or other property from the Escrow Fund, to object to authority or made such deliveries, to agree to, negotiate, enter into settlements and compromises ofdecision or determination in such Company Stockholder’s individual capacity, and demand dispute resolution pursuant no Company Stockholder shall have the right to Section 10 of object, dissent, protest or otherwise contest the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect same. Any action required to claims of Indemnitees be taken by the Company Stockholders hereunder or any action that the Company Stockholders, at their election, have the right to take hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of be taken only by the Stockholders’ Representative and no Company Stockholder acting on its own shall be entitled to indemnifytake any such action. After Closing, defend Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and hold harmless 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 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 his affiliates Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all the Company Stockholders and their respective Representatives for certain lossesshall be final, liabilities binding and expenses pursuant conclusive upon each such Person. No Company Stockholder shall have the right to Section 10.1 of object to, dissent from, protest or otherwise contest the Merger Agreementsame. The Stockholders’ Representative may from time to time deliver claims to provisions of this Section 9.15(a), including the Escrow Agent certifying power of attorney granted hereby, are independent and itemizing in reasonable detail severable, are irrevocable and coupled with an interest and shall not be terminated by any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution act of any Escrow Shares one or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 the Company Stockholders or Section 8.2, and subject to the retention by operation of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsLaw.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. 11.1 By virtue of (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Stockholders' Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.9, 1.10 and 8, the Participating Holders, by the adoption of this Agreement, acceptance of consideration under this Agreement and/or the Merger Agreement completion and execution of the Escrow Contributors Letters of Transmittal shall be deemed to have approved designated Shareholder Representative Services LLC as the indemnification provisions set forth representative of the Participating Holders (the "Stockholders' Representative").
(b) The Stockholders' Representative may resign at any time, and the Participating Holders who hold at least a majority in interest of the Merger Agreement Indemnity Pro Rata Fractions at the time of any vote shall be authorized to replace the Stockholders' Representative and such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement and the appointment documents delivered pursuant hereto.
(c) By their adoption of ▇▇▇▇ ▇▇▇▇▇ this Agreement, acceptance of consideration under this Agreement and/or the delivery of the Letter of Transmittal contemplated by Section 1.8, the Participating Holders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders' Representative shall be appointed and constituted the true and lawful attorney-in-fact of each Participating Holder, 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 and in general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement or the Escrow Agreement and which shall be binding on each Participating Holder. The Stockholders' Representative hereby accepts such appointment;
(ii) without limiting the foregoing, as of the Effective Time the Stockholders' Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Participating Holders (in the name of any or all of the Participating Holders 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' Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and communicationsother communications relating to this 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 Holders individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to authorize delivery resolve or settle all matters and disputes arising out of or related to Parent of Escrow Shares, Escrow Cash or other property from this Agreement and the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements transactions contemplated hereby and compromises ofthereby, and demand dispute resolution pursuant to Section 10 of the Merger Agreement (D) engage attorneys, accountants, financial and comply with orders of courts other advisors, paying agents and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions other persons necessary or appropriate in the reasonable judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing.;
11.2 Any successor (iii) Parent shall be entitled to rely conclusively, and shall be protected in acting, or refraining from acting, upon any written notice, instruction, request or decision given or made by the Stockholders’ ' Representative appointed as to any of the matters described in this Section 1.12 as if such notice, instruction, request or decision had been given or made by all of the Participating Holders, and no party shall have any cause of action against Parent or the Surviving Corporation for any action or inaction of Parent in reliance upon any such notice, instruction, request or decision;
(iv) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon each of the Participating Holders;
(v) no Participating Holder 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, except for fraud, gross negligence or willful misconduct on the part of the Stockholders' Representative;
(vi) the provisions of this Section 1.12 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Holder may have in connection with the transactions contemplated by this Agreement; and
(vii) the provisions of this Section 1.12 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Holder, and any references in this Agreement to a Participating Holder or the Participating Holders shall mean and include the successors to the Participating Holders' rights hereunder, whether pursuant to Section 10.1(l) testamentary disposition, the laws of descent and distribution or otherwise. As between the Merger Agreement shall automaticallyParticipating Holders, without any further action or noticeon the one hand, become and the Stockholders’ ' Representative on the other hand, the Stockholders' Representative shall not be liable for all purposes any act done or omitted hereunder as Stockholders' Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of this Agreement.
11.3 counsel shall be conclusive evidence of such good faith. The Company Stockholders have agreed Stockholders' Representative shall be entitled to pay certain out-of-pocket costs be indemnified, defended, held harmless and reimbursed by the Participating Holders against any loss, liability damage, claim, penalty, fine, forfeiture, action, fee, cost and expense (including the reasonable fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of or in connection with the Stockholders’ Representative ' Representative's execution and to indemnify, defend performance of this Agreement and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing Agreement, in reasonable detail each case as such Representative Loss is suffered or incurred; provided, that in the event that any amounts such Representative Loss is finally adjudicated to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash have been primarily caused by the Escrow Agent pursuant to Section 8.1 bad faith, gross negligence or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims willful misconduct of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to ' Representative, the Stockholders’ ' Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to will reimburse the aggregate Participating Holders the amount of such claimsindemnified Representative Loss attributable to such bad faith, gross negligence or willful misconduct. Any such Representative Losses may be recovered at the election of the Stockholders' Representative, at any time from: (i) the Expense Fund; (ii) the Escrow Fund, at such time as remaining amounts would otherwise be distributable to the Participating Holders and to the extent any funds remain in such fund; or (iii) from the Participating Holders directly according to the Indemnity Pro Rata Fraction of each Participating Holder; provided, however, that while this section allows the Stockholders' Representative to be paid from the Expense Fund and the Escrow Fund, this does not relieve the Participating Holders 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Millennial Media Inc.)
Stockholders’ Representative. 11.1 By (a) Each Holdback Participant (by virtue of such Holdback Participant’s approval of the Merger and the adoption of this Agreement, acceptance of payment of any consideration in respect of the Merger Agreement as contemplated herein, and/or execution and delivery of a Letter of Transmittal) hereby irrevocably nominates, constitutes and appoints Fortis Advisors LLC as the Escrow Contributors shall be deemed exclusive agent and true and lawful attorney-in-fact of the Holdback Participants (the “Stockholders’ Representative”), with full power of substitution, to have approved the indemnification provisions set forth act in the Merger Agreement name, place and stead of the Holdback Participants for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in all matters relating to or arising out of this Agreement and the Agreement, including in connection with any claim for indemnification, compensation or reimbursement under Section 9. Fortis Advisors LLC hereby accepts its appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative.
(b) Each Holdback Participant (by virtue of such Holdback Participant’s approval of the Merger and the adoption of this Agreement, acceptance of payment of any consideration in respect of the Merger as contemplated herein, and/or execution and delivery of a Letter of Transmittal or MIP Release) hereby grants to the Stockholders’ Representative full power and authority to execute, deliver, acknowledge, certify and file on behalf of the Holdback Participants (in the name and on behalf of any or all of the Holdback Participants) any and all documents that the Stockholders’ Representative may, in his 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, in performing its duties as contemplated by this Section 10.1. Without limiting the generality of the foregoing, the Stockholders’ Representative will have authority, on behalf of the Holdback Participants, (i) to give and receive notices and communications, (ii) to authorize delivery to Parent set off by the Indemnitees of Escrow Shares, Escrow Cash or other property amounts from the Escrow FundHoldback Amount in satisfaction of indemnification claims hereunder, (iii) to object to such deliveriesany claim for indemnification hereunder, (iv) to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to such claims of Indemnitees hereunderand any other claims arising pursuant to this Agreement, (v) to defend any claims or Legal Proceedings brought by any third parties, and (vi) to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of . Notwithstanding the Merger Agreement shall automaticallyforegoing, without any further action or notice, become the Stockholders’ Representative shall have no obligation to act on behalf of the Holdback Participants, except as expressly provided herein, and for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses clarity, there are no obligations of the Stockholders’ Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule that the Stockholders’ Representative is not a party to. The Stockholders’ Representative shall be entitled to: (i) rely upon the Payment Spreadsheet, (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 Holdback Participant or other party. Notwithstanding anything to the contrary contained in this Agreement, in any Transaction Document 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 9, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed on behalf of any Holdback Participant by the Stockholders’ Representative, and on any other action taken on behalf of any Holdback Participant by the Stockholders’ Representative, as fully binding upon such Holdback Participant. Each Holdback Participant (i) agrees that all actions taken by the Stockholders’ Representative under this Agreement shall be binding upon such Holdback Participant and such Holdback Participant’s successors as if expressly confirmed and ratified in writing by such Holdback Participant, and (ii) waives any and all defenses which may be available to contest, negate or disaffirm the action of the Stockholders’ Representative taken in good faith under this Agreement.
(c) The power of attorney granted in Section 10.1(a) and the powers, immunities and rights to indemnification granted to the Stockholders’ Representative and the Advisory Group hereunder: (i) are coupled with an interest and irrevocable; (ii) may be delegated by the Stockholders’ Representative; (iii) shall survive the dissolution, death, bankruptcy, liquidation or incapacity of each of the Holdback Participants and shall be binding on any successor thereto; and (iv) shall survive the delivery of an assignment by any Holdback Participant of the whole or any fraction of his, her or its interest in the Holdback Amount.
(d) Certain Holdback Participants have entered 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 (such Holdback Participants, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). In dealing with this Agreement and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative under this Agreement, (i) neither the Stockholders’ Representative (together with its members, managers, directors, officers, contractors, agents and employees) nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”) shall assume or incur any responsibility or liability to any Holdback Participant by reason of any error in judgment or other act or failure to act in connection with this Agreement, the Transaction Documents or any other Contract executed in connection with the Contemplated Transactions, except for any act or failure to act which represents gross negligence, willful misconduct or bad faith, 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 error in judgment or other act or failure to act on the part of the Stockholders’ Representative pursuant to such advice shall not subject the Stockholders’ Representative to liability to any Holdback Participant. The Holdback Participants shall jointly and severally indemnify, defend and hold harmless the Stockholders’ Representative Group and his affiliates hold it harmless against and their respective Representatives for certain lossesfrom any Tax, liabilities and expenses pursuant to Section 10.1 loss, liability, claim, damage, fee, cost, fine, judgment amount paid in settlement or expense (including attorneys’ or other skilled professionals’ fees reasonably incurred or suffered as a result of the Merger performance of its duties under this Agreement. The , the Transaction Documents, or any other Contract executed in connection with the Contemplated Transactions and in connection with seeking recovery from insurers) (collectively, the “Stockholders’ Representative Expenses”) incurred without gross negligence, willful misconduct or bad faith on its part and arising out of or in connection with the acceptance or administration of its duties hereunder. In no event shall Parent or any of the other Indemnitees be liable for any such loss, liability or expense. Such Stockholders’ Representative Expenses may be recovered first, from time to time deliver claims the Expense Fund, second, from any distribution of the Indemnity Holdback Amount otherwise distributable to the Escrow Agent certifying Holdback Participants at the time of distribution, and itemizing in reasonable detail any amounts third, directly from the Holdback Participants.
(e) Upon thirty (30) days’ prior written notice to which Parent, the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant shall have the right to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of resign in its sole discretion for any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of reason. If the Stockholders’ Representative submitted pursuant shall resign or otherwise become unable to fulfill its responsibilities under this Section 11.3 from 10.1 or cease to function in its capacity as Stockholders’ Representative for any reason whatsoever, then the Escrow Fund by delivering Holdback Participants shall, within thirty (30) days thereof, appoint a successor and, promptly thereafter, shall notify Parent of the identity of such successor. In any event, the Stockholders’ Representative shall continue to have all rights to indemnification provided in Section 10.1(d). Any such successor shall become the “Stockholders’ Representative” for purposes of this Agreement, including Section 9 and this Section 10.1. If for any reason there is no Stockholders’ Representative at any time, all references herein to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal shall be deemed to refer to the aggregate amount of such claimsHoldback Participants.
(f) The Holdback Participants acknowledge that the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any
Appears in 1 contract
Sources: Merger Agreement (Rovi Corp)
Stockholders’ Representative. 11.1 By virtue (a) Upon the Effective Time and without further act of any Stockholder, the Stockholders' Representative shall be appointed as agent and attorney-in-fact for each Stockholder, for and on behalf of each such Stockholder, with full power and authority to represent the Stockholders and their successors with respect to all matters arising under this Agreement and the Escrow Agreement, and all actions taken by the Stockholders' Representative hereunder shall be binding upon such Stockholders and their successors as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the adoption foregoing, the Stockholders' Representative shall have full power and authority, on behalf of all the Stockholders and their successors, to interpret all the terms and provisions of this Agreement, to dispute or fail to dispute any Claim of Damages against the Escrow Shares made by an Indemnified Party, to assert Claims of Damages against any Indemnifying Party, to negotiate and compromise any dispute which may arise under this Agreement, to sign any releases or other documents with respect to any such dispute, and to authorize delivery of Escrow Shares pursuant to the Escrow Agreement or any other payments to be made with respect thereto. All determinations of the Merger Agreement Stockholders' Representative shall be decided by a majority thereof in the Escrow Contributors event there is more than one Stockholders' Representative.
(b) The Stockholders' Representative, or any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Stockholders' Representative as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of the Representative, a successor shall be named from among the Stockholders by a majority of the members of the Board of Directors of who served on such board prior to the Merger. Each such successor Stockholders' Representative shall have all the power, authority, rights and privileges hereby conferred upon the original Stockholders' Representative, and the term "Stockholders' Representative" as used herein shall be deemed to include such successor Stockholders' Representative.
(c) In performing any of their duties under this Agreement, or upon the claimed failure to perform his duties hereunder, the Stockholders' Representative shall not be liable to the Stockholders for any damages, losses or expenses which they may incur as a result of any act, or failure to act under this Agreement or the Escrow Agreement; provided, however, that the Representative shall be liable for damages arising out of actions or omissions that both (i) were taken or omitted not in good faith and (ii) constituted willful default or gross negligence under this Agreement or the Escrow Agreement. Accordingly, the Representative shall not incur any such Liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of his counsel given with respect to any questions relating to the duties and responsibilities of the Stockholders' Representative hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement or the Escrow Agreement, not only as to its due execution and to the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which the Stockholders' Representative shall in good faith believe to be genuine, to have approved been signed or presented by the indemnification purported proper person or persons and to conform with the provisions set forth in the Merger Agreement and of this Agreement and the appointment Escrow Agreement. The limitation of ▇▇▇▇ ▇▇▇▇▇ as liability provisions of this Section shall survive the termination of this Agreement and the resignation of the Representative. The stockholders of Riverbed shall severally indemnify the Stockholders’ ' Representative and hold him harmless against any loss, liability or expense (including any expenses of legal counsel retained by the Stockholders' Representative) incurred without willful default, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash gross negligence or other property from bad faith on the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment part of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ ' Representative and to indemnify, defend and hold harmless arising out of or in connection with the Stockholders’ Representative and acceptance or administration of his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.duties hereunder
Appears in 1 contract
Stockholders’ Representative. Section 11.1 By virtue of Stockholders’ Representative.
(a) The Stockholders, by the approval and adoption of this Agreement, hereby irrevocably appoint the Merger Agreement Stockholders’ Representative as agent and attorney in fact for the Escrow Contributors shall be deemed Company and each Stockholder, and authorize the 40 Stockholders’ Representative (i) to have approved take all action necessary to consummate the indemnification provisions set forth in the Merger Agreement and transactions contemplated by this Agreement and the appointment Escrow Agreement, or the defense and/or settlement of ▇▇▇▇ ▇▇▇▇▇ any claims for which the Stockholders may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Article X, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the Stockholder Related Agreements, (iii) to authorize delivery to the Purchaser of the Escrow Shares in satisfaction of claims by the Purchaser, including with respect to the Net Debt Adjustment Amount, (iv) to make decisions on behalf of the Company and the Stockholders and 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, 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 Estimated Net Debt, the Final Net Debt and the Net Debt Adjustment Amount.
(b) All decisions and actions by the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(sincluding without limitation (i) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of any agreement between the Stockholders’ Representative and the Purchaser relating to the defense or settlement of any claims for which the accomplishment of Stockholders may be required to indemnify the foregoing.
11.2 Any successor Stockholders’ Representative appointed Purchaser pursuant to Section 10.1(lArticle X, (ii) of the Merger Agreement shall automatically, without any further action or notice, become agreement between the Stockholders’ Representative for and the Purchaser relating to the Estimated Net Debt, the Final Net Debt or the Net Debt Adjustment Amount, and (iii) any agreement between the Stockholders’ Representative and the Purchaser relating to the Escrow Agreement or the determination of the Purchaser’s payment obligations under Sections 1.3 or 1.5 or any other matter relating to Article I, shall be binding upon all purposes of this Agreementthe Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
11.3 (c) The Company Stockholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Stockholders have agreed for any act done or omitted pursuant to pay certain out-of-pocket costs this Agreement as the Stockholders’ Representative while acting in good faith and expenses in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and to indemnify, defend and hold harmless arising out of or in connection with the acceptance or administration of the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Representative’s duties under this Agreement. .
(d) The Stockholders’ Representative may from time shall have full power and authority on behalf of each Stockholder to time deliver claims to the Escrow Agent certifying take any and itemizing in reasonable detail all actions on behalf of, execute any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2and all instruments on behalf of, and subject to execute or waive any and all rights of, the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent IndemniteesStockholders under this Agreement, the Escrow Agent Agreement and the Stockholder Related Agreements.
(e) By his, her or its approval of this Agreement and the transactions contemplated by this Agreement, each Stockholder agrees, in addition to the foregoing, that:
(i) the Purchaser shall first pay claims be entitled to rely conclusively on the instructions and decisions of the Stockholders’ Representative submitted as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to Section 11.3 from the Escrow Fund Article X, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, and (C) any other actions required or permitted to be taken by delivering to the Stockholders’ Representative and/or his designees under this Agreement, the Escrow Shares having Agreement and any Stockholder Related Agreement, and no Stockholder shall have any cause of action against the Purchaser for any action taken by the Purchaser in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon the Company and all of the Stockholders and 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 Agreement except for fraud or willful misconduct by the Stockholders’ Representative in connection with the matters described in this Article XI;
(iii) the provisions of this Article XI are independent and severable, are irrevocable and coupled with an aggregate interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, the Escrow Agreement Conversion Price and/or and the Stockholder Related Agreements; and 41
(f) the provisions of this Article XI shall be binding upon the executors, heirs, legal Representatives, personal Representatives, successor trustees and successors of each Stockholder, and any reference in this Agreement or the Escrow Cash equal Agreement to a Stockholder or the Stockholders shall mean and include the successors to the aggregate amount rights of such claimsthe Stockholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ (a) The Stockholders’ Representative is hereby irrevocably appointed as the Stockholders’ Representative, agent, proxy, and attorney-in-fact for all the Stockholders for all purposes under this Agreement including the full power and authority on the Stockholders’ behalf:
(i) to give consummate the Transactions,
(ii) to negotiate and receive notices and communicationssettle disputes arising under, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree relating to, negotiatethis Agreement and the other agreements, enter into settlements and compromises ofinstruments, and demand dispute resolution documents contemplated hereby or executed in connection herewith,
(iii) to receive and disburse to the Stockholders any funds received on behalf of the Stockholders under this Agreement or otherwise,
(iv) to withhold any amounts received on behalf of the Stockholders pursuant to Section 10 of this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary Stockholders or appropriate in the reasonable judgment of the Stockholders’ Representative in the performance of their duties hereunder,
(v) to direct the distribution of funds, engage the Company to distribute funds (including the Merger Consideration, the Net Positive Purchase Price Adjustment Amount (if any) and the Adjustment Escrow Release Amount), give receipts for funds, make or direct payments of funds from the accomplishment Adjustment Escrow Amount in satisfaction of claims asserted by Buyer, and object to any claims by any Person against the Adjustment Escrow Amount,
(vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the foregoing.Stockholders), and
11.2 Any successor Stockholders’ Representative appointed pursuant (vii) to Section 10.1(l) take all other actions to be taken by or on behalf of the Merger Stockholders in connection with this Agreement shall automaticallyand the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The Stockholders, by approving this Agreement (whether by vote or by execution of a Letter of Transmittal), further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses consent of the Stockholders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder. All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to indemnifyobject, defend dissent, protest or otherwise contest the same. If an allocation is not otherwise provided for in this Agreement, the Stockholders’ Representative shall distribute funds to the Stockholders in accordance with their respective Indemnifying Party Pro Rata Share. Buyer, LLC Sub, Merger Sub and Senior Lenders may conclusively rely, without independent verification or investigation, upon any such decision or action of the Stockholders’ Representative as being the binding decision or action of every Stockholder, and neither Buyer, LLC Sub, Merger Sub nor Senior Lenders shall be liable to any Stockholder or any other Persons for any actions taken or omitted from being taken by them or by Buyer, LLC Sub, Merger Sub or Senior Lenders in accordance with or reliance upon any such decision or action of the Stockholders’ Representative. The Stockholders’ Representative shall have no duties or obligations to the Stockholders hereunder, except as expressly set forth in this Agreement, and no implied covenants, agreements, functions, duties, responsibilities, obligations or liabilities shall be read into this Agreement, or shall otherwise exist against the Stockholders’ Representative.
(b) By the approval of this Agreement, each Stockholder hereby severally, for itself only and not jointly and up to its Indemnifying Party Pro Rata Share, agrees to indemnify and hold harmless the Stockholders’ Representative and his affiliates its partners, managers, officers, agents and their respective Representatives for certain lossesother representatives against all expenses (including reasonable attorneys’ fees), liabilities judgments, fines and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing amounts incurred by such Persons in reasonable detail connection with any amounts action, suit or proceeding to which the Stockholders’ Representative or his affiliates such other Person is made a party by reason of the fact that it is or their respective Representatives are entitled was acting as the Stockholders’ Representative pursuant to Section 10.1 the terms of the Merger this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, other than as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims a result of the Stockholders’ Representative’s bad faith or willful misconduct.
(c) Neither the Stockholders’ Representative submitted pursuant nor any of its members, managers, officers, agents or other representatives shall incur any liability to Section 11.3 any Stockholder by virtue of the failure or refusal of such Persons for any reason to consummate the Transactions or relating to the performance of their duties hereunder, except for actions or omissions constituting bad faith or willful misconduct. The Stockholders’ Representative and its members, managers, officers, agents and other representatives and their respective Affiliates shall have no liability in respect of any Legal Proceeding brought against such Persons by any Stockholder, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise, unless such Persons took or omitted taking any action in bad faith or as result of willful misconduct.
(d) The Stockholders’ Representative shall have the right, in its sole discretion, to recover from any amounts withheld by the Stockholders’ Representative, including without limitation, its reasonable out of pocket expenses incurred in the performance of its duties hereunder (the “Charges”). In the event such amounts are insufficient to satisfy the Charges, then the Stockholders’ Representative may recover such deficit from the Adjustment Escrow Fund by delivering Amount. In event the Adjustment Escrow Amount is insufficient to satisfy such deficit, each Stockholder will be obligated to pay any remaining unpaid amounts to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal on a several, and not joint, basis, up to each such Stockholder’s Indemnifying Party Pro Rata Share.
(e) In the aggregate amount event that the Stockholders’ Representative becomes unable or unwilling to continue in its capacity as the Stockholders’ Representative, or if the Stockholders’ Representative resigns as the Stockholders’ Representative, a majority in interest of the Stockholders may by written consent appoint a new representative as the Stockholders’ Representative. Notice and a copy of the written consent appointing such claimsnew representative and bearing the signatures of a majority in interest of the Stockholders must be delivered to Buyer. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer.
Appears in 1 contract
Sources: Merger Agreement (Plug Power Inc)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and approving this Agreement and the appointment transactions contemplated hereby and delivering a Letter of ▇▇▇▇ ▇▇▇▇▇ Transmittal, each Company Stockholder shall have irrevocably authorized, directed and appointed the Stockholders’ Representative to act as sole and exclusive agent, attorney-in-fact and representative of the Company Stockholders, with full power of substitution with respect to all matters under this Agreement and the 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, contesting and settling any and all claims for indemnification pursuant to ARTICLE VI, resolving any other disputes hereunder, performing the duties expressly assigned to the Stockholders’ Representative hereunder and to engage and employ agents and representatives, retain and use the 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 indemnification under ARTICLE VI and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative, to give shall be absolutely and receive notices and communicationsirrevocably binding on each Company Stockholder as if such Company Stockholders personally had taken such action, to authorize delivery to Parent of Escrow Sharesexercised such rights, Escrow Cash power or other property from the Escrow Fund, to object to authority or made such deliveries, to agree to, negotiate, enter into settlements and compromises ofdecision or determination in such Company Stockholder’s individual capacity, and demand dispute resolution pursuant no Company Stockholder shall have the right to Section 10 of object, dissent, protest or otherwise contest the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect same. Any action required to claims of Indemnitees be taken by the Company Stockholders hereunder or any action that the Company Stockholders, at their election, have the right to take hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of be taken only by the Stockholders’ Representative and no Company Stockholder acting on its own shall be entitled to indemnifytake any such action. After Closing, defend Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and hold harmless 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 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 his affiliates Parent relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of 59 all the Company Stockholders and their respective Representatives for certain lossesshall be final, liabilities binding and expenses pursuant conclusive upon each such Person. No Company Stockholder shall have the right to Section 10.1 of object to, dissent from, protest or otherwise contest the Merger Agreementsame. The Stockholders’ Representative may from time to time deliver claims to provisions of this Section 9.15(a), including the Escrow Agent certifying power of attorney granted hereby, are independent and itemizing in reasonable detail severable, are irrevocable and coupled with an interest and shall not be terminated by any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution act of any Escrow Shares one or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 the Company Stockholders or Section 8.2, and subject to the retention by operation of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsLaw.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of (a) The Stockholders, by the approval and adoption of this Agreement, hereby irrevocably appoint the Merger Agreement Stockholders’ Representative as agent and attorney in fact for the Escrow Contributors shall be deemed Company and each Stockholder, and authorize the Stockholders’ Representative (i) to have approved take all action necessary to consummate the indemnification provisions set forth in the Merger Agreement and transactions contemplated by this Agreement and the appointment Escrow Agreement, or the defense and/or settlement of ▇▇▇▇ ▇▇▇▇▇ any claims for which the Stockholders may be required to indemnify the Purchaser or any other Indemnified Party pursuant to Article X, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the Stockholder Related Agreements, (iii) to authorize delivery to the Purchaser of the Escrow Shares in satisfaction of claims by the Purchaser, including with respect to the Net Debt Adjustment Amount, (iv) to make decisions on behalf of the Company and the Stockholders and 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, 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 Estimated Net Debt, the Final Net Debt and the Net Debt Adjustment Amount.
(b) All decisions and actions by the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(sincluding without limitation (i) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of any agreement between the Stockholders’ Representative and the Purchaser relating to the defense or settlement of any claims for which the accomplishment of Stockholders may be required to indemnify the foregoing.
11.2 Any successor Stockholders’ Representative appointed Purchaser pursuant to Section 10.1(lArticle X, (ii) of the Merger Agreement shall automatically, without any further action or notice, become agreement between the Stockholders’ Representative for and the Purchaser relating to the Estimated Net Debt, the Final Net Debt or the Net Debt Adjustment Amount, and (iii) any agreement between the Stockholders’ Representative and the Purchaser relating to the Escrow Agreement or the determination of the Purchaser’s payment obligations under Sections 1.3 or 1.5 or any other matter relating to Article I, shall be binding upon all purposes of this Agreementthe Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
11.3 (c) The Company Stockholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Stockholders have agreed for any act done or omitted pursuant to pay certain out-of-pocket costs this Agreement as the Stockholders’ Representative while acting in good faith and expenses in the exercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and to indemnify, defend and hold harmless arising out of or in connection with the acceptance or administration of the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Representative’s duties under this Agreement. .
(d) The Stockholders’ Representative may from time shall have full power and authority on behalf of each Stockholder to time deliver claims to the Escrow Agent certifying take any and itemizing in reasonable detail all actions on behalf of, execute any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2and all instruments on behalf of, and subject to execute or waive any and all rights of, the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent IndemniteesStockholders under this Agreement, the Escrow Agent Agreement and the Stockholder Related Agreements.
(e) By his, her or its approval of this Agreement and the transactions contemplated by this Agreement, each Stockholder agrees, in addition to the foregoing, that:
(i) the Purchaser shall first pay claims be entitled to rely conclusively on the instructions and decisions of the Stockholders’ Representative submitted as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to Section 11.3 from the Escrow Fund Article X, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims and Notices of Claims, and (C) any other actions required or permitted to be taken by delivering to the Stockholders’ Representative and/or his designees under this Agreement, the Escrow Shares having Agreement and any Stockholder Related Agreement, and no Stockholder shall have any cause of action against the Purchaser for any action taken by the Purchaser in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon the Company and all of the Stockholders and 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 Agreement except for fraud or willful misconduct by the Stockholders’ Representative in connection with the matters described in this Article XI;
(iii) the provisions of this Article XI are independent and severable, are irrevocable and coupled with an aggregate interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, the Escrow Agreement Conversion Price and/or and the Stockholder Related Agreements; and
(f) the provisions of this Article XI shall be binding upon the executors, heirs, legal Representatives, personal Representatives, successor trustees and successors of each Stockholder, and any reference in this Agreement or the Escrow Cash equal Agreement to a Stockholder or the Stockholders shall mean and include the successors to the aggregate amount rights of such claimsthe Stockholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sorrento Therapeutics, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and (a) The Company Stockholders, by approving this Agreement and the appointment of transactions contemplated hereby, hereby irrevocably appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Stockholders’ Representative, including to give act as their agent and receive notices attorney-in-fact for purposes of Section 10 and communicationsthe 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 Escrow Shares, Escrow Cash or other property from the Escrow FundFunds in satisfaction of claims by Parent or otherwise, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, of and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration, and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to such claims of Indemnitees hereunderor otherwise, resolve any claims made pursuant to Section 10 and the Escrow Agreement, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) ). By his execution of the Merger Agreement shall automaticallyEscrow Agreement, without any further action or notice, become ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative for all purposes of this Section 10 and the Escrow Agreement.
11.3 . 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 Company Stockholders have agreed to pay certain out-of-pocket costs rights and expenses 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 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 purposes of this Agreement and the Escrow Agreement. If for any reason there is no Stockholders’ Representative at any time, all references herein to indemnifythe Stockholders’ Representative shall be deemed to refer to the Requisite Former Company Stockholders.
(b) The Stockholders’ Representative shall have no liability to any Company Stockholder, defend Parent or Surviving Corporation with respect to the 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 for any (i) Damages (including Damages arising out of the negligence of the Stockholders’ Representative) arising out of the acceptance or administration of the Stockholders’ Representative’s duties hereunder and his affiliates and their respective Representatives for certain losses, liabilities (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 hold the Stockholder’s Representative harmless 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 or its approval of this Agreement and/or the acceptance of the payments provided hereby, agrees, in addition to and not in limitation of the foregoing, that:
(i) 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 10.1 10 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 for any action taken by Parent in reliance upon any such instructions or decisions;
(ii) all actions, decisions and instructions of the Merger Stockholders’ Representative shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholder Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
(iii) the provisions of this Section 11.1 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company 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 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 of each Company Stockholder.
(d) At the Closing, Parent shall cause to be deposited with the Escrow Agent the Stockholders’ Representative Escrow Amount. The Stockholders’ Representative Escrow Amount (and earnings thereon) may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which be applied as the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may beRepresentative, in respect of Indemnification Demands made by its sole discretion, determines appropriate to defray, offset, or pay any Parent Indemniteescharges, the Escrow Agent shall first pay claims fees, costs, liabilities or expenses of the Stockholders’ Representative submitted 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 11.3 from 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 by delivering 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 or responsibility to the Escrow Contributors with respect to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to Amount or the aggregate amount actions and responsibilities of such claimsthe Stockholders’ Representative contemplated by this Section 11.1(d).
Appears in 1 contract
Sources: Merger Agreement (Volcano Corp)
Stockholders’ Representative. 11.1 By virtue (a) In order to administer efficiently (i) the implementation of the adoption Agreement by certain of the Merger Agreement Stockholders, (ii) the Escrow Contributors shall be deemed waiver of any condition to have approved the indemnification provisions set forth in obligations of such Stockholders, and (iii) the Merger Agreement and this Agreement settlement of any dispute with respect to the Agreement, the Former Management Stockholders, the Management Holders and the appointment Berkshire Stockholders, with the exception of Berkshire and Berkshire Partners, (the "Designating Stockholders") hereby designate Russ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Designating Stockholders hereby authorize the Stockholders’ Representative' 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 communications(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 authorize delivery transfer the Company Shares to Parent Buyer.
(c) Each Designating Stockholder hereby specifically authorizes and directs the Stockholders' Representative to execute on behalf of Escrow Shares, Escrow Cash or other property from such Designating Stockholder the Escrow Fund, certificates to object be delivered to such deliveries, to agree to, negotiate, enter into settlements Buyer by the Representing Parties and compromises of, and demand dispute resolution the Stockholders pursuant to Section 10 of 6.1 unless such authorization and direction shall have been revoked by such Designating Stockholder in writing prior to the Merger Agreement and comply with orders of courts and awards of Arbitrator(sClosing.
(d) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in In the reasonable judgment of event that the Stockholders’ ' Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant dies, becomes legally incapacitated or resigns from such position, Robe▇▇ ▇. ▇▇▇ll shall fill such vacancy and shall be deemed to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become be the Stockholders’ ' Representative for all purposes of this AgreementAgreement unless otherwise determined by the Designating 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.
11.3 The Company (e) All decisions and actions by the Stockholders' Representative in accordance with this Agreement shall be binding upon all of the Designating Stockholders, and no Designating Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(f) By their execution of this Agreement, the Designating Stockholders have agreed agree that:
(i) Buyer shall be able to pay certain out-of-pocket costs rely conclusively on the instructions and expenses decisions of the Stockholders’ ' Representative and as to indemnify, defend and hold harmless any actions required or permitted to be taken by the Designating Stockholders or the Stockholders’ ' Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2hereunder, and subject to no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 instructions or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims decisions of the Stockholders’ ' Representative; (ii) all actions, decisions and instructions of the Stockholders' Representative submitted pursuant shall be conclusive and binding upon all of the Designating Stockholders and no 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, except for fraud or willful breach of this Agreement by the Stockholders' Representative; (iii) remedies available at law for any breach of the 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 11.3 from 1.5; and (iv) the Escrow Fund provisions of this Section 1.5 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by delivering the Designating Stockholders to the Stockholders’ ' Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to and shall be binding upon the aggregate amount executors, heirs, legal representatives and successors of such claimseach Designating Stockholder.
(g) All fees and expenses incurred by the Stockholders' Representative shall be paid pro rata by the Designating Stockholders in accordance with their ownership of New Common Stock.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of the Merger Agreement the Escrow Contributors "Stockholders' Representative" shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇mean Robe▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ any person appointed as a successor Stockholders' Representative pursuant to Section 1.06(b) hereof.
(b) During the 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 incapacitated, resigns or is 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 Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Majority of any successor Stockholders' Representative shall be provided to GRS promptly after it shall have been effected.
(c) The Stockholders' Representative shall be authorized to take any action and 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 on their behalf with such changes or amendments thereto as the Stockholders’ Representative, ' Representative shall determine to give be necessary or desirable in his sole and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property absolute discretion. Any party receiving an Instrument from the Escrow Fund, Stockholders' Representative shall have the right to object to rely in good faith upon such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderInstrument, and to take all actions necessary act in accordance with the Instrument without independent investigation.
(d) GRS shall have no liability to any Stockholder or appropriate in otherwise arising out of the reasonable judgment acts or omissions of the Stockholders’ ' Representative for or any disputes among the accomplishment of Stockholders or with the foregoingStockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders' Representative to satisfy any obligations it might have to the Stockholders under this Agreement, any agreement referred to herein or otherwise.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(e) of the Merger Agreement The Stockholders shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ ' Representative from and his affiliates against any and their respective Representatives for certain lossesall claims, liabilities demands, actions, suits, causes of action, damages, costs and expenses pursuant to Section 10.1 (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or brought against the Stockholders' Representative by any person arising out of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative acts or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims omissions of the Stockholders’ ' Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to or any disputes among the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to , unless such Claims allegedly occurred as a result of the aggregate amount of such claimswillful misconduct or negligence by the Stockholders' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. 11.1 By virtue (a) Yucaipa American Alliance Fund II LP (such person and any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the adoption Company Stockholders, and shall be authorized to act on behalf of the Merger Agreement the Escrow Contributors shall Company Stockholders and to take any and all actions required or permitted to be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as taken by the Stockholders’ RepresentativeRepresentative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article 8 and with respect to any actions to be taken by the Stockholders’ Representative pursuant to the terms of the Company Escrow Agreement (including, to give and receive notices and communicationswithout limitation, to the exercise of the power to:
(i) authorize the delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, Shares to object to such deliveries, to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party;
(ii) agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to any claims of Indemnitees hereunder, and to for indemnification; and
(iii) take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant ). In all matters relating to Section 10.1(l) of the Merger Agreement shall automaticallythis Article 8, without any further action or notice, become the Stockholders’ Representative for shall be the only party entitled to assert the rights of the Company Stockholders, and the Stockholders’ Representative shall perform all purposes of this Agreement.
11.3 The the obligations of the Company Stockholders have agreed hereunder. The Parent Indemnified Parties shall be entitled to pay certain out-of-pocket costs rely on all statements, representations and expenses decisions of the Stockholders’ Representative and to indemnify, defend and hold harmless Representative.
(b) The Company Stockholders shall be bound by all actions taken by the Stockholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in Section 8.5(d). The Stockholders’ Representative shall promptly, and his affiliates and their respective Representatives for certain lossesin any event within five Business Days, liabilities and expenses provide written notice to the Company Stockholders of any action taken on behalf of them by the Stockholders’ Representative pursuant to the authority delegated to the Stockholders’ Representative under this Section 10.1 8.5. The Stockholders’ Representative shall, at all times, act in his or her capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to be in the best interest of the Merger Company Stockholders. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Company Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders’ Representative may from time consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not have any duty to time deliver claims ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Company Escrow Agent certifying and itemizing Agreement. As to any matters not expressly provided for in reasonable detail any amounts to which this Agreement or the Company Escrow Agreement, the Stockholders’ Representative shall not exercise any discretion or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementtake any action.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, (c) Each Company Stockholder shall indemnify and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of hold harmless and reimburse the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund and against such Company Stockholder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by delivering to the Stockholders’ Representative and/or his designees arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement or the Company Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the aggregate amount of such claimsStockholders’ Representative’s gross negligence, bad faith or willful misconduct.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. 11.1 (a) By virtue voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger Agreement or participating in the Escrow Contributors Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Non-Series C Stockholder, Participating Warrantholder and the Participating Optionholder shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment designation of the Stockholders’ Representative as the representative, agent, proxy, and attorney-in-fact for all the accomplishment Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders for all purposes under this Agreement including the full power and authority on the Non-Series C Stockholders’, Participating Warrantholders’ and Participating Optionholders’ behalf: (i) to consummate the transactions contemplated by this Agreement including the execution and delivery of all other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement, and the foregoing.
11.2 Any successor other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to recover from any amounts received or to be received by the Non-Series C Stockholders’ Representative appointed , the Participating Warrantholders, and the Participating Optionholders pursuant to Section 10.1(l) of the Merger Agreement shall automaticallythis Agreement, without or otherwise to satisfy any further action and all obligations or notice, become liabilities incurred by the Stockholders’ Representative for all purposes in the performance of its duties hereunder, (iv) to execute and deliver any amendment or waiver to this Agreement.
11.3 , and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Non-Series C Stockholders, the Participating Warrantholders, or the Participating Optionholders), and (v) to take all other actions to be taken by or on behalf of the Stockholders, the Participating Warrantholders, and the Participating Optionholders in connection with this Agreement, and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The Company Stockholders have agreed to pay certain outNon-of-pocket costs Series C Stockholders, the Participating Warrantholders, and expenses the Participating Optionholders, further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Stockholders’ Representative and shall survive the death, incapacity, bankruptcy, dissolution, or liquidation of any Non-Series C Stockholder, Participating Warrantholder or Participating Optionholder. All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders, and no Non-Series C Stockholder, Participating Warrantholder or Participating Optionholder shall have the right to object, dissent, protest, or otherwise contest the same. The Stockholders’ Representative shall have no duties or obligations hereunder except those set forth herein and such duties and obligations shall be determined solely by the express provisions of this Agreement.
(b) Each Non-Series C Stockholder, Participating Warrantholder and Participating Optionholder hereby agrees to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates its agents and their respective Representatives for certain assigns from and against all liabilities, penalties, forfeitures, fines, claims, actions, damages, losses, liabilities costs and expenses pursuant (including legal and other professional fees and expenses, and litigation costs and all expense of document location, duplication and shipment) of any kind (whether known or unknown, fixed or contingent) (“Stockholders’ Representative Expenses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto in each case as any such Stockholders’ Representative Expenses is suffered or incurred; provided, that in the event that any such Stockholders’ Representative Expense is finally adjudicated to Section 10.1 have been directly caused by the fraud, gross negligence or willful misconduct of the Merger Stockholders’ Representative, the Stockholders’ Representative will reimburse the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders the amount of such indemnified Stockholders’ Representative Expense to the extent attribute to such fraud, gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders, any such Stockholders’ Representative Expenses may be recovered by the Stockholders’ Representative from: (1) the Stockholders’ Representative Expense Holdback and (2) the amounts in the Working Capital Holdback, at such time as remaining amounts would be otherwise distributable to the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders; provided, that while this Section 11.13(b) allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders from their obligation to promptly pay such Stockholders’ Representative Expenses 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 Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 11.13(b). The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement.
(c) The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Non-Series C Stockholder, Participating Warrantholder or Participating Optionholder. The Stockholders’ Representative may from time shall not be liable to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which Non-Series C Stockholder, Participating Warrantholder or Participating Optionholder for any action taken or omitted by the Stockholders’ Representative or his affiliates any agent employed by the Stockholders’ Representative hereunder or their respective Representatives are entitled under any other document or instrument contemplated hereby, or in connection therewith, except that the Stockholders’ Representative shall not be relieved of any liability directly resulting from the Stockholder Representatives’ fraud, gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable to any of the Stockholders, Participating Warrantholders, or Participating Optionholders for any action or omission taken in good faith or pursuant to Section 10.1 the advice of counsel. The Stockholders’ Representative shall not be required to make any inquiry concerning either the performance or observance of any of the Merger terms, provisions or conditions of this Agreement.
11.4 At (d) The Stockholders’ Representative Expense Holdback will be used for the time purposes of paying directly, or reimbursing the distribution of Stockholders’ Representative for, any Escrow Shares or Escrow Cash to any Escrow Contributors Third-Party expenses pursuant to Section 8.1 or Section 8.2this Agreement and any agreements ancillary hereto. The Non-Series C Stockholders, Participating Warrantholders, and subject Participating Optionholders will not receive any interest or earnings on the Stockholders’ Representative Expense Holdback and irrevocably transfer and assign to the retention 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 Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims principal of the Stockholders’ Representative submitted pursuant Expense Holdback other than as a result of its fraud, 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 Section 11.3 from its creditors in the Escrow Fund by delivering to event of bankruptcy. As soon as practicable following the completion of the Stockholders Representative’s responsibilities, the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal will deliver any remaining balance of the Stockholders’ Representative Expense Holdback to the aggregate amount Paying Agent for further distribution to the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders. For tax purposes, the Stockholders’ Representative Expense Holdback will be treated as having been received and voluntarily set aside by the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders at the time of Closing.
(e) The Stockholders’ Representative may resign at any time. If the Stockholders’ Representative resigns or is otherwise unable or unwilling to serve in such claimscapacity, then the Principal Stockholders will appoint a new Person to serve as a replacement for such Stockholders’ Representative and will provide prompt written notice thereof to Tyler. Until such notice is received, Tyler will be entitled to rely on the actions and statements of the previous Stockholders’ Representative and all such actions and statements shall be binding on the Non-Series C Stockholders, Participating Warrantholders, and Participating Optionholders.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors (a) shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ act as the Stockholders’ Stockholder’s representative (the “Stockholder’s Representative, ”) and as exclusive agent and attorney-in-fact to give and receive notices and communications, to authorize delivery to Parent act on behalf of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) any Stockholder with respect to claims any and all matters, claims, controversies, or disputes arising out of Indemnitees hereunder, and the terms of this Agreement. The Stockholder’s Representative shall have the power to take any and all actions which the Stockholder’s Representative believes are necessary or appropriate or in the reasonable judgment best interests of the Stockholders’ Representative , as fully as if each such Stockholder was acting on its, his or her own behalf with respect to all matters concerning the Stockholders or any of them following the Closing Date, including for the accomplishment purpose of administering the Escrow Agreement, settling on behalf of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Stockholders any indemnification claims made by any Indemnified Buyer Party under Section 10.1(l) 10, representing the Stockholders in connection with the determination of the Merger Agreement Net Working Capital Valuation under Section 2.5, and taking any other action that is specifically delegated to the Stockholder’s Representative hereunder. An Indemnified Buyer Party shall automaticallygive notice under this Section 10.9 of any claim for indemnification against the Stockholders to the Stockholders and the Stockholder’s Representative, without any further action or and only the Stockholder’s Representative shall be empowered, following such notice, become to respond to or take any other action on behalf of the Stockholders’ Stockholders with respect to the claim. The Stockholders shall be bound by any and all actions taken on their behalf by the Stockholder’s Representative for all purposes of in accordance with this Agreement, and in particular, the Stockholders shall be bound by the Escrow Agreement being executed by the Stockholder’s Representative to the same extent as if they were signatories thereto. The Stockholder’s Representative is expressly authorized to execute, deliver and perform the Escrow Agreement.
11.3 (b) The Company authority granted hereunder is deemed to be coupled with an interest. Buyer shall have the right to rely on any actions taken or omitted to be taken by the Stockholder’s Representative as being the act or omission of any Stockholder, without the need for any inquiry, and any such actions or omissions shall be binding upon each Stockholder, and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the actions taken or not taken or communications or writings given or executed by the Stockholder’s Representative. Except as specifically contemplated by the Escrow Agreement, Buyer shall be entitled to disregard any notices or communications given or made by the Stockholders have agreed unless given or made through the Stockholder’s Representative.
(c) In the event of the death of the Stockholder’s Representative or his inability to pay certain out-of-pocket perform his functions hereunder, the Stockholders shall choose a successor Stockholder’s Representative by a plurality vote of such Stockholders based upon Closing Shares held immediately prior to the Closing Date.
(d) The Stockholder’s Representative shall not be liable to any Stockholder or any other Party for any action taken or omitted to be taken by him in his capacity as Stockholder’s Representative except in the case of willful misconduct or gross negligence. The Stockholders shall jointly indemnify the Stockholder’s Representative and hold him harmless from and against any loss, liability or expense of any nature incurred by the Stockholder’s Representative arising out of or in connection with the administration of his duties as Stockholder’s Representative, including reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the Stockholders’ Representative and to indemnifypremises, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain lossesunless such loss, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative liability or his affiliates expense shall be caused by such Stockholder’s Representative’s willful misconduct or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementgross negligence.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Sources: Stock Purchase Agreement (Air Products & Chemicals Inc /De/)
Stockholders’ Representative. 11.1 By virtue of (a) In addition to the adoption of other rights and authority granted to the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth Stockholders’ Representative elsewhere in the Merger Agreement and this Agreement and except as expressly provided herein, by participating in the appointment execution and delivery of this Agreement and receiving the benefits thereof, including the right to receive the consideration payable in connection with the transactions contemplated by this Agreement, each Company Stockholder hereby irrevocably authorizes and appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇ , as agent, attorney-in-fact and representative to act for and on behalf of such Company Stockholder regarding any matter under this Agreement or relating to the transactions contemplated hereby, with full power of substitution to act in the name, place and stead of such Company Stockholder and to act on behalf of such Company Stockholder with respect to the transactions contemplated hereby, including in any amendment of or dispute, litigation or arbitration involving this Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Stockholders’ RepresentativeRepresentative shall determine to be necessary or appropriate in conjunction with any of the transactions contemplated by this Agreement. This power of attorney and all authority hereby conferred is coupled with an interest and is irrevocable and shall not terminate or otherwise be affected by the death, disability, incompetence, bankruptcy or insolvency of any Company Stockholder. Except as expressly provided herein, no Company Stockholder shall directly have the right to give exercise any right hereunder, it being understood and agreed that all such rights shall only be permitted to be exercised by the Stockholders’ Representative on behalf of the Company Stockholders. Without limiting the generality of the foregoing, the Stockholders’ Representative has full power and authority, on behalf of each Company Stockholder and such Company Stockholder’s successors and assigns, to: (i) interpret the terms and provisions of this Agreement and the documents to be executed and delivered by the Company Stockholders in connection herewith, (ii) execute and deliver and receive notices deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and communicationsother documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, to authorize delivery to Parent (iii) receive service of Escrow Sharesprocess in connection with any claims under this Agreement, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to (iv) agree to, negotiate, enter into settlements and compromises of, assume the defense of Third-Party Claims, prosecute and demand dispute resolution pursuant to Section 10 of the Merger Agreement defend claims for indemnification under Article IX and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereundersuch claims, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor , (v) give and receive notices and communications, (vi) authorize payment to Parent out of the Indemnity Holdback Merger Consideration or any portion thereof in satisfaction of claims brought by Parent for Losses, (vii) object to such payments, (viii) assert the attorney-client privilege on behalf of the Company Stockholders with respect to any communications that relate in any way to the transactions contemplated hereby, (ix) deliver to Parent any and all Ancillary Agreements executed by the Company Stockholders and deposited with the Stockholders’ Representative appointed pursuant Representative, upon the Stockholders’ Representative’s determination that the conditions to Section 10.1(lClosing have been satisfied or waived and (x) take all actions necessary or appropriate in the judgment of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes on behalf of the Company Stockholders in connection with this Agreement.
11.3 The (b) Service by the Stockholders’ Representative shall be without compensation except for the reimbursement by the Company Stockholders have agreed to pay certain of out-of-pocket costs expenses and expenses indemnification specifically provided herein.
(c) Notwithstanding Section 10.11(a), if the Stockholders’ Representative believes that he or she requires further authorization or advice from any Company Stockholder on any matters concerning this Agreement or any other agreement contemplated hereby, the Stockholders’ Representative will be entitled, but not obligated, to seek such further authorization solely from such Company Stockholder.
(d) From and after the date hereof, but except as expressly provided herein, each of Parent and the Company is entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement and the transactions contemplated hereby. A decision, act, consent or instruction of the Stockholders’ Representative constitutes a decision of all the Company Stockholders in respect of this Agreement and the transactions contemplated hereby. Such decision, act, consent or instruction is final, binding and conclusive upon each Company Stockholder, and each of Parent and the Company shall be entitled to indemnifyrely 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, defend and on any other decision, act, consent or instruction 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 will constitute notice to or from each Company Stockholder.
(e) The Stockholders’ Representative may resign at any time, and may appoint a new Stockholders’ Representative to act in his or her stead, and may be removed for any reason or no reason by the vote or written consent of the Company Stockholders holding a majority of the shares of Company Common Stock as of the date hereof; provided, however, in no event shall the Stockholders’ Representative be removed without the Company Stockholders holding a majority of the shares of Company Common Stock having first appointed a new Stockholders’ Representative who shall assume such duties immediately upon the removal of the Stockholders’ Representative. In the event of the death, incapacity, or removal of the Stockholders’ Representative, a new Stockholders’ Representative shall be appointed by the vote or written consent of the Company Stockholders holding a majority of the shares of Company Common Stock as of the date hereof and a copy of the written consent or minutes appointing such new Stockholders’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent; provided that until such notice is received, Parent and the Company shall be entitled to rely on the decisions and actions of the prior Stockholders’ Representative as described in this Section 10.11.
(f) The Stockholders’ Representative shall hold and be entitled to use the Stockholders’ Representative Fund for the purposes of paying for, or reimbursing the Stockholders’ Representative for, any and all costs and expenses (including counsel and legal fees and expenses) incurred by the Stockholders’ Representative in connection with the protection, defense, enforcement or other exercise or fulfillment of any rights or obligations under this Agreement (collectively, the “Stockholders’ Representative Expenses”). The Stockholders’ Representative shall hold the Stockholders’ Representative Fund in a segregated bank account and shall not comingle it with any other funds. At such time as the Stockholders’ Representative deems appropriate, the Stockholders’ Representative shall distribute to the Company Stockholders (in accordance with their respective Pro Rata Shares) the remaining Stockholders’ Representative Fund. The Stockholders’ Representative will be promptly reimbursed by the Company Stockholders (based on their respective Pro Rata Shares) for Stockholders’ Representative Expenses not covered by the Stockholders’ Representative Fund upon demand.
(g) The Company Stockholders, severally and not jointly (based on their Pro Rata Share), agree to indemnify and hold harmless the Stockholders’ Representative (in his or her capacity as such) for and from any Loss or Liability he or she may incur or be subject to as a result of his affiliates duties hereunder or any of his actions or inactions as such, except as may result from the Stockholders’ Representative’s actions that would constitute fraud or willful misconduct.
(h) The Stockholders’ Representative shall have no duties or responsibilities except those expressly set forth herein, and their respective Representatives for certain lossesno implied covenants, functions, responsibilities, duties, obligations or liabilities and expenses pursuant to Section 10.1 on behalf of any Company Stockholder shall otherwise exist against the Merger AgreementStockholders’ Representative. The Stockholders’ Representative may from time shall not be liable to time deliver claims any Company Stockholder relating to the Escrow Agent certifying performance of the Stockholders’ Representative’s duties or exercise of any rights under this Agreement for any errors in judgment, negligence, oversight, breach of duty or otherwise except to the extent it is finally determined in a court of competent jurisdiction by clear and itemizing convincing evidence that the actions taken or not taken by the Stockholders’ Representative constituted actual fraud or were taken or not taken in reasonable detail bad faith. The Stockholders’ Representative shall be indemnified and held harmless by the Company Stockholders against all losses, including costs of defense, paid or incurred in connection with any amounts action, suit, proceeding or claim to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled is made a party by reason of the fact that the Stockholders’ Representative was acting as the Stockholders’ Representative pursuant to Section 10.1 of this Agreement; provided, however, that the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash Stockholders’ Representative shall not be entitled to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject indemnification hereunder to the retention extent it is finally determined in a court of Escrow Shares and/or Escrow Cash competent jurisdiction by clear and convincing evidence that the actions taken or not taken by the Escrow Agent pursuant Stockholders’ Representative constituted actual fraud or were taken or not taken in bad faith. The Stockholders’ Representative shall be protected in acting upon any notice, statement or certificate believed by the Stockholders’ Representative to Section 8.1 be genuine and to have been furnished by the appropriate Person and in acting or Section 8.2refusing to act in good faith on any matter. The Stockholders’ Representative, solely in his capacity as such, shall not be liable to Parent or any Affiliate of Parent by reason of this Agreement or the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims performance of the Stockholders’ Representative submitted pursuant to Section 11.3 from Representative’s duties hereunder or otherwise. The foregoing indemnities will survive the Escrow Fund by delivering to Closing, the resignation or removal of Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to or the aggregate amount termination of such claimsthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (PLBY Group, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors (a) Brazos GP Partners, LLC shall be deemed constituted and appointed as agent (the foregoing person and any other person duly acting in such capacity as authorized hereunder from time to have approved time, the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the “Stockholders’ Representative, ”) for and on behalf of each Former Stakeholder to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiatenegotiate and enter into, enter into settlements on behalf of the Former Stakeholders, amendments, consents and compromises of, and demand dispute resolution waivers under this Agreement pursuant to Section 10 the terms set forth herein, to make and receive payments on behalf of the Merger Agreement Former Stakeholders pursuant to the terms set forth herein, to take such other actions as authorized by this Agreement, including actions in connection with the determination of the Estimated Closing Statement, the Proposed Closing Statement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderthe Final Closing Statement, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) . Such agency may be changed by a vote or written consent by the holders of a majority of the Merger Agreement shall automaticallyCompany Capital Stock on an as-converted basis as of the Closing Date, without voting in the same manner as would have been voted in accordance with the Organizational Documents of the Company as in effect immediately prior to the Closing Date (the “Majority Stockholders”), from time to time upon not less than ten (10) days’ prior written notice to Parent. If at any further action or notice, become time the Stockholders’ Representative for all purposes resigns, dies or becomes incapable of acting, the Majority Stockholders shall immediately choose another Stockholder to act as the Stockholders’ Representative under this Agreement.
11.3 . No such resignation shall be effective until a new Stockholders’ Representative shall be appointed and have confirmed his acceptance of such appointment in writing to Parent. The Company Stockholders have agreed Former Stakeholder Indemnified Persons may not make a claim for indemnity against Parent pursuant to pay certain out-of-pocket costs this Agreement except through the Stockholders’ Representative, who shall make such a claim only upon the written direction of the Majority Stockholders. The Stockholders’ Representative may enforce, prosecute and expenses settle any indemnification related claim without directions from the Former Stakeholders or the Former Stakeholder Indemnified Persons, and all acts and decisions of the Stockholders’ Representative in connection with such matters shall be binding on all the Former Stakeholders and Former Stakeholder Indemnified Persons. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for services provided hereunder, but shall receive reimbursement from, and be indemnified severally by, the Former Stakeholders, in proportion to indemnifythe aggregate amount of Merger Consideration received by such Former Stakeholders, defend for any and all Damages or expenses incurred by the Stockholders’ Representative in the performance or discharge of its duties pursuant to this Section 10.13, and, in addition to the foregoing, the Stockholders’ Representative shall be entitled to offset the amount of any such Damages and expenses from any amounts released from the Escrow Fund and the Reserve Account upon its release to the Former Stakeholders prior to the distribution of such funds to the Former Stakeholders in accordance with the terms hereof. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Former Stakeholders.
(b) The Stockholders’ Representative will be entitled to engage such counsel, experts and other agents as the Stockholders’ Representative deems necessary or proper in connection with performing the Stockholders’ Representative’s obligations hereunder, and will be promptly reimbursed by the Former Stakeholders for all reasonable expenses, disbursements and advances incurred by the Stockholders’ Representative in such capacity upon demand. Each Former Stakeholder shall indemnify and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 pro rata based upon such Former Stakeholders’ pro rata share of the Merger Agreementtotal outstanding shares of the Company Capital Stock on an as-converted basis as of the Closing Date, from any and all Damages that are incurred by the Stockholders’ Representative as a result of actions taken, or actions not taken, by the Stockholders’ Representative herein, except to the extent that such Damages arise from the gross negligence or willful misconduct of the Stockholders’ Representative. The Stockholders’ Representative may from time to time deliver claims shall not be liable to the Escrow Agent certifying and itemizing in reasonable detail Former Stakeholders for any act done or omitted hereunder as Stockholders’ Representative, excluding acts which constitute gross negligence or willful misconduct.
(c) All amounts to which received by the Stockholders’ Representative or his affiliates or their respective Representatives are on behalf of the Former Stakeholders under this Agreement will be promptly paid by the Stockholders’ Representative to the Former Stakeholders in the proportions required under this Agreement; provided, however, that the Stockholders’ Representative will be entitled to set off any amounts payable to the Stockholders’ Representative under Section 10.13 against amounts otherwise payable to the Former Stakeholders pursuant to this Section 10.1 of the Merger Agreement10.13.
11.4 At the time of the distribution of any Escrow Shares (d) A decision, act, consent or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims instruction of the Stockholders’ Representative submitted pursuant to Section 11.3 in respect of any action under this Agreement shall constitute a decision of all of the Former Stakeholders and any other Former Stakeholder Indemnified Persons, whether or not there was any prior consultation with or contrary instructions from the Escrow Fund by delivering to any Former Stakeholder, and shall be final, binding and conclusive upon each such Former Stakeholder and other Former Stakeholder Indemnified Persons, and Parent may conclusively rely upon any decision, act, consent or instruction of the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal hereunder as being the decision, act, consent or instruction of each and every such Former Stakeholder and any other Former Stakeholder Indemnified Persons. Parent shall be able to rely conclusively on the proper distribution of such amounts by the Stockholders’ Representative among the Former Stakeholders upon receipt by the Stockholders’ Representative of such amounts. Parent is hereby irrevocably relieved from any liability to any Person (including any Former Stakeholder or any other Former Stakeholder Indemnified Persons) for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders’ Representative.
(e) The holders of two-thirds of the issued and outstanding Company Capital Stock (on a fully-diluted, as-converted basis) immediately prior to the aggregate amount of Effective Time may amend this Section 10.13 from time to time following the date hereof and such claimsamendment shall be binding on all Former Stakeholders. Any such amendment shall not be binding on and shall have no effect on Parent or the Surviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (Amsurg Corp)
Stockholders’ Representative. 11.1 (a) By virtue of the adoption of this Agreement, the delivery of the Letters of Transmittal and/or acceptance of any portion of the Merger Agreement the Escrow Contributors Consideration, each Equity Holder shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as designated the Stockholders’ RepresentativeRepresentative 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 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, but not limited to, the 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, communications to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from Buyer and/or the Escrow FundAgent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby (except to object to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such deliveries, to agree to, negotiate, enter into settlements and compromises ofnotice or communication shall be given or received by such Equity Holders individually), and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s(iv) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor . The Stockholders’ Representative appointed pursuant shall have authority and power to Section 10.1(l) act on behalf of each Equity Holder with respect to the Merger 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 automatically, without any further action or notice, become be bound by all actions taken and documents executed by the Stockholders’ Representative for all purposes of in connection with this Agreement and the Escrow Agreement.
11.3 The Company Stockholders have agreed , and Buyer shall be entitled to pay certain out-of-pocket costs and expenses 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.
(b) In performing the functions specified in this Agreement, the Stockholders’ Representative shall not be liable to any Equity Holder in the absence of gross negligence or willful misconduct on the part of the Stockholders’ Representative. Each Equity Holder shall severally (based on each such Equity Holder’s Pro Rata Percentage), and to indemnifynot jointly, defend indemnify and hold harmless the Stockholders’ Representative from and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of against any loss incurred without gross negligence or willful misconduct on the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims part of the Stockholders’ Representative submitted pursuant to Section 11.3 from and arising out of or in connection with the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount acceptance or administration of such claimsits duties hereunder.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International Inc)
Stockholders’ Representative. 11.1 By virtue (a) The Company Stockholders, by the approval and adoption of this Agreement, appoint, authorize and empower the Stockholders’ Representative to act on behalf of each Company Stockholder in connection with, and to facilitate the consummation of the adoption transactions under, this Agreement, which shall include the power and authority (i) to make all decisions relating to the determination of any adjustments to the Purchase Price and the determination of EBITDA, (ii) 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 Parent pursuant to Article 10 hereof, (iii) to give and receive all notices required to be given under the Agreement, (iv) to execute and deliver the Escrow Agreement, (v) to execute and deliver such amendments to this Agreement as the Stockholders’ Representative, in his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement, and (vi) to take any and all additional action as is contemplated to be taken by or on behalf of the Merger Agreement Company Stockholders by the Escrow Contributors shall be deemed to have approved terms of this Agreement.
(b) In the indemnification provisions set forth in event of the Merger Agreement and this Agreement and death or permanent disability of the appointment of Stockholders’ Representative, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall serve as Stockholders’ Representative. In the event of the death or permanent disability of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a successor Stockholders’ Representative shall be elected by a majority vote of the Company Stockholders, with each such Company Stockholder (or his, her or its successors or assigns) to be given a vote equal to the number of votes represented by the shares of Company Stock held by such Company Stockholder immediately prior to the Closing. Each successor Stockholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement and the Escrow Agreement upon the original Stockholders’ Representative.
(c) All decisions and actions by the Stockholders’ Representative, including, without limitation, any agreement between the Stockholders’ Representative and Parent relating to give the determination of any adjustments to the Purchase Price and receive notices and communicationsthe determination of EBITDA, the defense or settlement of any claims for which the Company Stockholders may be required to authorize delivery indemnify Parent pursuant to Parent Article 10 hereof or the amendment of Escrow Shares, Escrow Cash or other property from this Agreement shall be binding upon all of the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofCompany Stockholders, and demand dispute resolution pursuant no Company Stockholder shall have the right to Section 10 object, dissent, protest or otherwise contest the same.
(d) By their adoption and approval of this Agreement, the Merger Agreement Company Stockholders agree that:
(i) Parent shall be able to rely conclusively on the instructions and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment decisions of the Stockholders’ Representative as to the determination of any adjustments to the Purchase Price and the determination of EBITDA, the settlement of any claims for indemnification by Parent pursuant to Article 10 hereof, the accomplishment amendment of this Agreement or any other actions required to be taken by the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) hereunder, and no Party hereunder shall have any cause of the Merger Agreement shall automatically, without any further action against Parent or notice, become the Stockholders’ Representative for any action taken by Parent in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs actions, decisions and expenses instructions of the Stockholders’ Representative shall be conclusive and to indemnifybinding upon all of the Company Stockholders, defend and hold harmless no Company 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, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
(iii) the provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company 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 2.07 are inadequate; therefore, Parent, the Stockholders’ Representative and his affiliates the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if any such Party brings an action to enforce the provisions of this Section 2.07; and
(v) the provisions of this Section 2.07 shall be binding upon the executors, heirs, legal representatives and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholders’ rights hereunder, whether pursuant to testamentary disposition, Applicable Laws relating to descent and distribution or otherwise.
(e) All fees and expenses incurred by the Stockholders’ Representative shall be paid by the Company Stockholders in accordance with their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementProportionate Shares. The Stockholders’ Representative may from time to time deliver claims may, in his sole discretion, offset such amount of fees and expenses against any amounts payable to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Company Stockholders under this Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 By (a) To the fullest extent permitted by Applicable Law, the Stockholders’ Representative is hereby (i) delegated the exclusive power and authority with respect to the enforcement of the rights of the Owner Signatories under this Stockholders Support Agreement and (ii) authorized, directed and appointed to act as sole and exclusive agent, attorney-in-fact and representative of the Owner Signatories, with full power of substitution and re-substitution, with respect to all matters under this Stockholders Support Agreement and the Merger Agreement, including (A) determining, giving and receiving notices and processes hereunder, (B) receiving certain distributions payable to the Owner Signatories pursuant to this Stockholders Support Agreement for the benefit of the Owner Signatories, (C) executing and delivering, on behalf of the Owner Signatories, any and all documents or certificates to be executed by the Owner Signatories, in connection with this Stockholders Support Agreement or the Merger Agreement and the transactions contemplated hereby and thereby, (D) granting any waiver, consent or approval on behalf of the Owner Signatories under this Stockholders Support Agreement or the Merger Agreement, (E) appointing one or more successor Stockholders’ Representatives, (F) contesting and settling any and all claims in respect of this Stockholders Support Agreement and the transactions contemplated hereby, (G) resolving any other disputes hereunder, (H) performing the duties expressly assigned to the Stockholders’ Representative hereunder, (I) engaging and employing agents and representatives and incurring such other costs, fees and expenses as the Stockholders’ Representative shall reasonably deem necessary or prudent in connection with the foregoing, (J) taking any action or providing any waiver, or receiving any notice with respect to any claims in respect of this Stockholders Support Agreement and the transactions contemplated hereby, and (K) settling any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent herewith shall, to the fullest extent permitted by Applicable Law, be absolutely and irrevocably binding on the other Owner Signatories as if such Owner Signatory personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Owner Signatory’s individual capacity, and such Owner Signatory shall have the right to object, dissent, protest or otherwise contest the same.
(b) The appointment of the Stockholders’ Representative as each Owner Signatory’s attorney-in-fact pursuant to this Section 13, to the fullest extent permitted by Applicable Law, by virtue of the adoption of this Stockholders Support Agreement, revokes any power of attorney heretofore granted that authorized any other person to represent such Owner Signatory with regard to the Merger matters described in this Section 13. The appointment of the Stockholders’ Representative as attorney-in-fact pursuant hereto is coupled with an interest and is irrevocable. The obligations of each Owner Signatory pursuant to this Stockholders Support Agreement the Escrow Contributors shall (i) will not be deemed terminated by operation of law, death, mental or physical incapacity, liquidation, dissolution, bankruptcy, insolvency or similar event with respect to have approved the indemnification provisions set forth such Owner Signatory or any proceeding in connection therewith, or in the Merger Agreement case of a trust, by the death of any trustee or trustees or the termination of such trust, or any other event, and (ii) shall survive the delivery of an assignment by any Owner Signatory of the whole or any fraction of its interest in any payment due to it under this Agreement and the appointment of ▇▇▇▇ Stockholders Support Agreement.
(c) The Stockholders’ Representative h▇▇▇▇▇ accepts the foregoing appointment and agrees to serve as Stockholders’ Representative, subject to the provisions hereof, for the period of time from and after the date hereof without compensation except for the reimbursement from the Owner Signatories, in accordance with this Stockholders Support Agreement, of costs, fees and expenses incurred by Stockholders’ Representative in its capacity as such.
(d) The Stockholders’ Representative shall be entitled to be reimbursed by the other Owner Signatories (including by offsetting such amount against any amounts owed to the Owner Signatories), and such Owner Signatory agrees to so reimburse the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property make the Stockholders’ Representative whole for such shortfall. Upon written notice from the Escrow FundStockholders’ Representative to the other Owner Signatories as to the existence of a shortfall, to object including a reasonably detailed description as to such deliveriesshortfall, such Owner Signatory shall promptly deliver to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 the Stockholders’ Representative full payment of its ratable share of the Merger Agreement amount of such shortfall.
(e) For all purposes of this Stockholders Support Agreement, Parent shall be entitled to rely conclusively on the instructions and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment decisions of the Stockholders’ Representative for as to the accomplishment settlement of any claims in respect of this Stockholders Support Agreement and the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant transactions contemplated hereby or any other actions required or permitted to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become be taken by the Stockholders’ Representative for all purposes hereunder or in connection with any of this Agreementthe transactions and other matters contemplated hereby.
11.3 (f) The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative shall not, in the absence of bad faith, willful misconduct or gross negligence, have any liability to the other Owner Signatories whatsoever with respect to its actions, decisions and determinations under this Stockholders Support Agreement, and shall be entitled to indemnifyassume that all actions, defend decisions and hold harmless determinations under this Stockholders Support Agreement are fully authorized by the other Owner Signatories.
(g) The Stockholders’ Representative and his affiliates and their respective Representatives for certain lossesshall be entitled to rely upon any order, liabilities and expenses pursuant certification, demand, notice, instrument or other writing delivered to Section 10.1 him hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of the Merger Agreementservice thereof. The Stockholders’ Representative may from time act in reliance upon any instrument or signature believed by him to time deliver claims be genuine and may assume that the person purporting to give receipt or advice or make any statement or execute any document in connection with the Escrow Agent certifying provisions hereof has been duly authorized to do so. The Stockholders’ Representative may conclusively presume that the undersigned representative of any party hereto that is an entity other than a natural person has full power and itemizing in reasonable detail any amounts authority to which instruct the Stockholders’ Representative or his affiliates or their respective Representatives are entitled on behalf of that party unless written notice to the contrary is delivered to the Stockholders’ Representative.
(h) The Stockholders’ Representative may act pursuant to Section 10.1 the advice of counsel with respect to any matter relating to this Stockholders Support Agreement and shall not be liable for any action taken or omitted by him in good faith in accordance with such advice.
(i) Parent hereby agrees that the Stockholders’ Representative shall not, in its capacity as such, have any liability to Parent, Merger Sub or the Surviving Corporation whatsoever with respect to his actions, decisions or determinations under this Stockholders Support Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject (j) Notwithstanding anything to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemniteescontrary herein, the Escrow Agent shall first pay claims rights, powers, benefits and obligations of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate under this Stockholders Support Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount shall survive any termination of such claimsthis Stockholders Support Agreement.
Appears in 1 contract
Sources: Stockholders Support Agreement (Unique Logistics International, Inc.)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth (a) Each Stockholder, by signing this Agreement, designates Rand▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇, in the Merger Agreement and this Agreement and the appointment of ▇event that Rand▇▇▇ ▇▇▇▇▇▇▇▇ as ▇▇ unable or unwilling to serve or resigns, Jame▇ ▇. ▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this 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) 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 and any communication or writing so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree that the Stockholders' Representative is authorized to accept deliveries including any notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Stockholder, with full power in his or her name and on his or her behalf to act according to the terms of this Agreement in the absolute discretion of the Stockholders' Representative, and in general to give do all things and receive notices to perform all acts including, executing and communicationsdelivering all agreements, to authorize delivery to Parent of Escrow Sharescertificates, Escrow Cash receipts, instructions and other instruments contemplated by or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to deemed advisable in connection with Section 10 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the Merger Agreement interest of such Stockholder and comply with orders the other Stockholder hereunder and in consideration of courts the mutual covenants and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderagreements made herein, and shall be irrevocable and shall not be terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) Notwithstanding the foregoing, the Stockholder Representative shall promptly inform the other Stockholders 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 Stockholder Representative. As between themselves, the Stockholders agree that the Stockholders' Representative shall only take all actions necessary action, or appropriate in refrain from taking action, upon consultation with and the reasonable judgment prior approval of the other Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Sources: Merger Agreement (Unicapital Corp)
Stockholders’ Representative. 11.1 By virtue (a) Lily Pond Investments, Inc. is hereby appointed, effective as of the adoption of Effective Time, as agent and representative (in such capacities, the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the “Stockholders’ Representative”), of the Stockholders and shall have exclusive power and authority, on behalf of the Stockholders, to give and receive notices and communicationscommunications to or from Parent, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from Merger Sub and/or the Escrow FundAgent relating to this Agreement, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 the Escrow Agreement or any of the Merger transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement and comply with orders of courts and awards of Arbitrator(sor the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by the Stockholders individually).
(b) with respect to claims of Indemnitees hereunderA decision, and to take all actions necessary act, consent or appropriate in the reasonable judgment instruction of the Stockholders’ Representative for the accomplishment shall constitute a decision of all of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) Stockholders and shall be final, binding and conclusive upon each Stockholder and the Escrow Agent, and Parent may rely upon any decision, act, consent or instruction of the Merger Agreement shall automatically, without any further action or notice, become 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 Agreementthe Stockholders’ Representative.
11.3 (c) The Company Stockholders have agreed Stockholders’ Representative shall not be liable to pay certain any Stockholder for any act done or omitted hereunder as the Stockholders’ Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for its services.
(d) If Lily Pond Investments, Inc. incurs any out-of-pocket costs expenses (including, without limitation, any reasonable fees and expenses of the counsel) in its capacity as Stockholders’ Representative under this Agreement or the Escrow Agreement or in connection with any of the transactions contemplated hereby or thereby, such out-of-pocket expenses shall be paid from, or reimbursed through deduction from, the Holdback Amount in accordance with Section 2.2(c) hereof and the Escrow Agreement, prior to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses making any payments or distributions pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative 2.2(c)(ii) or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement2.2(c)(iii) hereof.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) Each Company Stockholder and the Company hereby irrevocably designates and appoints Robert T. Angle as the Stockholders' Representative (the "Stockholders' ▇▇▇▇▇▇▇ntative") to represent and act for him, her or it for all purposes in his, her or its capacity as a Company Stockholder or the Company under this Agreement and any Ancillary Agreement, but only for the 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 Company 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 discharging its duties and responsibilities with respect to each Designated Purpose hereunder and under any Ancillary Agreement, the Stockholders' Representative shall have all rights and powers necessary and incident to the proper discharge thereof, and any decision or act of the adoption Stockholders' Representative with respect to each Designated Purpose shall be conclusive and absolutely binding upon each and all of the Merger Agreement Stockholders and the Escrow Contributors shall be deemed Company.
(c) The Stockholders and the Company hereby authorize the Stockholders' Representative, at its sole discretion, to have approved the indemnification provisions set forth employ attorneys, accountants and others to assist it in the Merger Agreement performance of its duties and responsibilities with respect to each Designated Purpose under this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as Ancillary Agreements.
(d) The Stockholders and the Company hereby authorize the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) ' Representative with respect to claims each Designated Purpose to (i) interpret and construe the provisions of Indemnitees hereunderthis Agreement and the Ancillary Agreements and (ii) determine, resolve, settle or contest any action, suit, proceeding or arbitration that may arise under this Agreement and any Ancillary Agreement with respect to take all actions necessary any Designated Purpose in any manner the Stockholders' Representative deems appropriate under the circumstances. Any settlement by the Stockholders' Representative of an action, suit, proceeding or appropriate in arbitration with respect to any Designated Purpose or any final order or judgment or award of a court or tribunal of competent jurisdiction resulting from an action, suit, proceeding or arbitration by Buyer or any other Buyer Indemnified Party against the reasonable judgment Stockholders' Representative with respect to any Designated Purpose shall be binding upon and enforceable against each of the Company Stockholders and the Company.
(e) Upon the death, disability or resignation of the Stockholders’ ' Representative, a successor Stockholders' Representative for shall be appointed by the accomplishment Company Stockholders. A successor Stockholders' Representative shall become such upon notice of the foregoingappointment delivered to Buyer.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(f) of the Merger Agreement shall automatically, without Notwithstanding any further action or notice, become the Stockholders’ Representative for all purposes provision of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses Section 12.12 which defines or limits the authority of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees' Representative, the Escrow Agent shall first pay claims decisions, acts and instructions of the Stockholders’ ' Representative submitted pursuant or the contesting of any actions shall be final, binding and conclusive upon each of the Company Stockholders and 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 Company Stockholders and the Company without the necessity of investigating or determining whether or not such Stockholders' Representative has acted within the scope of the powers given to Section 11.3 it under this Agreement. Notices or communications to or from the Escrow Fund Stockholders' Representative shall constitute notice to or from each and all of the Company Stockholders and the Company. The Buyer and any other Buyer Indemnified Party are hereby released and discharged from any Liability to any Company Stockholder or the Company for any acts done by delivering to the Buyer and any other Buyer Indemnified Party in accordance with such decision, act or instruction of the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal ' Representative.
(g) The Stockholders hereby authorize the Stockholders' Representative, at its sole discretion, to approve changes, modifications and amendments to this Agreement, the aggregate amount Disclosure Schedules and the Ancillary Agreements and to execute and deliver any and all instruments and documents in connection therewith on behalf of such claimsStockholders.
Appears in 1 contract
Stockholders’ Representative. 11.1 By (a) For purposes of this Agreement and the Ancillary Agreements, the Company and each Stockholder by virtue of the adoption and approval of this Agreement and approval of the Merger and/or acceptance of any consideration pursuant to this Agreement or by signing the Escrow Contributors shall be deemed to have approved Stockholder Consent, the indemnification provisions set forth in Letter of Transmittal, or the Merger Option Termination Agreement and this Agreement receiving the benefits thereof, each of the Stockholders have constituted, appointed and empowered effective from and after the appointment of ▇▇▇▇ ▇▇▇▇▇ Closing, Shareholder Representative Services LLC, as the Stockholders’ Representative, for all purposes in connection with this Agreement, and any related agreements, and for the benefit of the Stockholders and the exclusive agent and attorney-in-fact to give act on behalf of each Stockholder, in connection with and receive notices to facilitate the consummation of the transactions contemplated hereby, which shall include the power and communicationsauthority to: (i) execute this Agreement, the Ancillary Agreements and other agreements, documents and certificates pursuant to such agreements, including all amendments to such agreements, and take all actions required or permitted to be taken under such agreements, (ii) authorize delivery to Parent of Escrow Shares, Escrow Cash all or other property from any portion of the Escrow Fund, to object to such deliveriesin satisfaction of purchase price adjustment claims, to agree toindemnification claims or other claims contemplated by this Agreement or as provided in the Escrow Agreement or Paying Agent Agreement, (iii) negotiate, enter into settlements execute and compromises ofdeliver such waivers, consents and demand dispute resolution pursuant to Section 10 amendments as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (iv) enforce and protect the rights and interests of the Merger Stockholders 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 or the Ancillary Agreements and comply with orders of courts the transactions provided for herein and awards of Arbitrator(s) with respect to claims of Indemnitees hereundertherein, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement or the Ancillary Agreements for and on behalf of the Stockholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Company and their respective Representatives regarding such claims, and, in connection therewith, to: (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the reasonable Company or any other Person, or by any Governmental Entity against the Stockholders’ Representative (on behalf of the Stockholders) and/or any of the Stockholders, and receive process on behalf of any or all Stockholders in any such claim, action, proceeding 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 claim, action, proceeding 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 or the Ancillary Agreements; (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding 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; and (F) use the Holdback Amount to satisfy any expenses incurred by the Stockholders’ Representative in connection with fulfilling its obligations hereunder from and after the Closing Date (including the fees and expenses of any Independent Auditor pursuant to Article III or Article X; (v) refrain from enforcing any right of the Stockholders arising out of or under or in any manner relating to this Agreement; provided, however, that no such failure to act on the part of the Stockholders’ Representative, except as otherwise provided in this Agreement, shall be deemed a waiver of any such right or interest by the Stockholders’ Representative or by the Stockholders unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; (vi) make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the 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; (vii) engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Stockholders in connection with any matter arising under this Agreement; and (viii) collect, hold and disburse the Holdback Amount and any other amounts due and payable to the Stockholders’ Representative for the accomplishment benefit of the foregoingStockholders, in accordance with the terms of this Agreement or the Ancillary Agreements.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(b) By virtue of the adoption and approval of this Agreement and approval of the Merger or by signing the Stockholder Consent, Letter of Transmittal, or the Option Termination Agreement shall automaticallyand receiving the benefits thereof, without any further action including the right to receive the consideration payable in connection with the Merger, each Stockholder grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or noticedesirable to be done in connection with the specific and limited matters described above, become as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that the Stockholders’ Representative for all purposes may lawfully do or cause to be done by virtue hereof. Each Stockholder further acknowledges and agrees that, upon execution of this Agreement.
11.3 , with respect to any delivery by the Stockholders’ Representative of any documents executed by the Stockholders’ Representative pursuant to this Section 11.17, such Stockholder shall be bound by such documents as fully as if such Stockholder had executed and delivered such documents. No bond shall be required of the Stockholders’ Representative. Any and all actions taken by the Stockholders’ Representative on behalf of the Stockholders shall be deemed to be facts ascertainable outside this Agreement and shall be binding on all of the Stockholders. The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of shall cooperate with the Stockholders’ Representative and to indemnifyany accountants, defend and hold harmless attorneys or other agents whom the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant may retain to assist in carrying out the Stockholders’ Representative duties hereunder. The Parties acknowledge that the Stockholders’ Representative obligations under this Section 10.1 11.17 are solely as a representative of the Merger Stockholders as set forth in this Agreement. All notices, counter notices, or other instruments or designations delivered by any Stockholder or the Stockholders’ Representative shall not be effective unless, but shall be effective if, signed by the Stockholders’ Representative, and if not, such document shall have no force and effect whatsoever hereunder and Parent and any other Person may proceed without regard to any such document. The Stockholders’ Representative may resign at any time.
(c) The Stockholders’ Representative shall be entitled to (a) receive reimbursement from time the Stockholders for all expenses and charges incurred by the Stockholders’ Representative in connection with the performance of their duties and the fulfillment of their obligations under this Agreement, and (b) be indemnified by the Stockholders. The Stockholders’ Representative will incur no liability in connection with its services pursuant to time deliver claims this Agreement and any related agreements except to the Escrow Agent certifying extent resulting from its gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders shall indemnify the Stockholders’ Representative against any reasonable, documented, and itemizing out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in reasonable detail connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Holdback Amount and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to which the Stockholders; provided, that while the Stockholders’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 the termination of the Merger this Agreement.
11.4 At the time (d) All of the distribution indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Closing and/or any termination of this Agreement.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Escrow Shares or Escrow Cash to Stockholder and (ii) shall survive the consummation of the transactions contemplated by this Agreement, and any Escrow Contributors action taken by the Stockholders’ Representative pursuant to Section 8.1 the authority granted in this Agreement shall be effective and absolutely binding on each Stockholder notwithstanding any contrary action of or Section 8.2direction from such Stockholder and no Stockholder shall have any right to object, and subject to dissent, protest or otherwise contest the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 same, except for actions or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims omissions of the Stockholders’ Representative submitted constituting willful misconduct. The provisions of this Section 11.17 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees and successors of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the rights of such Stockholder (as applicable) hereunder, whether pursuant to Section 11.3 from testamentary disposition, the Escrow Fund by delivering to laws of descent and distribution or otherwise.
(f) ▇▇▇▇▇▇ acknowledges and agrees that the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate is a party to this Agreement Conversion Price and/or Escrow Cash equal solely to perform certain functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of Parent and ▇▇▇▇▇▇ Sub acknowledges and agrees that the Stockholders’ Representative shall have no liability to, and shall not be liable for any losses of, any of Parent or Merger Sub in connection with any obligations of the Stockholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby, except (i) to the aggregate amount extent such losses shall be proven to be the direct result of such claimswillful misconduct by the Stockholders’ Representative in connection with the performance of its obligations hereunder.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gambling.com Group LTD)
Stockholders’ Representative. 11.1 By virtue of (a) Effective upon the approval and adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of Merger by OWL Stockholders, OWL’s stockholders will be conclusively presumed to have appointed ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, as agent and attorney-in-fact (the “Stockholders’ Representative”) for and on behalf of each OWL Stockholder, to (i) give and receive notices and communicationscommunications in connection with this Agreement, to authorize delivery to Parent of Escrow Sharesand the Merger, Escrow Cash or other property (ii) receive payments from the Escrow FundParent under this Agreement, to object to such deliveries(iii) execute and deliver all ancillary agreements, to agree to, negotiate, enter into settlements certificates and compromises of, and demand dispute resolution pursuant to Section 10 documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the Merger transactions contemplated by this Agreement, (iv) receive service of process in connection with any claims under this Agreement and comply with orders of courts and awards of Arbitrator(s(v) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of any of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) . All actions of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative Representatives shall be in writing signed by the above-named individuals, or their successors, acting in his, her or its capacity as Stockholders’ Representatives. Each OWL Stockholder shall be bound by all actions taken by the Stockholders’ Representatives consistent with this Section 12.14 in his, her, or its capacity as the Stockholders’ Representatives, and neither the Parent, Merger Sub nor the Surviving Corporation shall be liable to any of OWL Stockholders for all purposes of this Agreementany 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.
11.3 (b) The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses appointment of the Stockholders’ Representative shall be deemed coupled with an interest and to indemnifyshall be irrevocable, defend and hold harmless the Parent, Merger Sub, the Surviving Corporation and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant in all matters referred to Section 10.1 of the Merger Agreementherein. The Stockholders’ Representative shall not be responsible to OWL Stockholders for any loss or damages OWL Stockholders may from time to time deliver claims to suffer by the Escrow Agent certifying and itemizing in reasonable detail any amounts to which performance by the Stockholders’ Representative of its duties under this Agreement, other than loss or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 damage arising from willful violation of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash law by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund of its duties under this Agreement.
(c) If any OWL Stockholder should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal pursuant to this Section 12.14 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not such OWL Stockholder, the aggregate amount Parent or the Surviving Corporation shall have received notice of such claimsdeath, incapacity, termination or other event.
Appears in 1 contract
Stockholders’ Representative. 11.1 By (a) The Owner and the Company hereby and, by virtue of the adoption Requisite Consent Action all of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Stockholders also, irrevocably make, constitute and this Agreement and the appointment of appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, ▇▇., as their agent and attorney-in-fact (individually or collectively the "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 has joined this Section 14.02 to authorize the Stockholders’ Representative, ' Representative to give act in a ministerial and receive notices administrative capacity for such Stockholders under this Agreement and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow FundAgreement. If the Stockholders' Representative should die or become incapacitated, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofhis 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, and demand dispute resolution pursuant any such successor shall be a Stockholder or an officer of a Stockholder and shall agree in writing to Section 10 accept such appointment. The choice of the Merger Agreement a successor Stockholders' Representative appointed in any manner permitted above shall be final and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take binding upon all actions necessary or appropriate in the reasonable judgment of the Stockholders’ . The decisions and actions of any successor Stockholders' Representative shall be, for the accomplishment all purposes, those of the foregoingStockholders' Representative as if originally named herein.
11.2 Any successor (b) Each Stockholder has made, constituted and appointed and by the execution of this Agreement or the Requisite Consent Action hereby or thereby irrevocably makes, constitutes and appoints each Stockholders’ ' Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallyacting alone as such person's true and lawful attorney-in-fact and agent, without any further action or noticefor such person and in such person's name, become the Stockholders’ Representative 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 deliver all instruments, certificates and other documents of every kind incident to the foregoing to all intents and purposes and with the same effect as such Stockholder could do personally, and each Stockholder hereby or thereby ratifies and confirms as his, her or its own act, all that the Stockholders' Representative shall do or cause to be done pursuant to the provisions of this AgreementSection 14.02. All notices under Section 14.01 and all other notices and communications directed to Stockholders under this Agreement shall be given to Stockholders' Representative.
11.3 (c) The Company Stockholders have agreed death of incapacity of any Stockholder shall not terminate the authority and agency of the Stockholders' Representative.
(d) The Owner hereby agrees to pay certain out-of-pocket indemnify the Stockholders' Representative and to hold him or her harmless 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 his or her duties as Stockholders' Representative, including the reasonable costs and expenses of incurred by the Stockholders’ ' Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail defending against any amounts to which the Stockholders’ Representative claim or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementliability in connection herewith.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) Sandpiper Ventures LLC shall be constituted and appointed as agent ("Stockholders' Representative") for an on behalf of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, Company Stockholders to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property the Parent Preferred Stock and cash from the Escrow FundFund in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement arbitration and comply with orders of courts and awards of Arbitrator(s) arbitrators with respect to claims of Indemnitees hereundersuch claims, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) . Such agency may be changed by the holders of a majority in interest of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may Escrow Fund from time to time deliver claims upon not less than ten (10) days' prior written notice to Parent and the Escrow Agent. No bond shall be required of the Stockholders' Representative, and the Stockholders' 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.
(b) The Stockholders' Representative shall not be liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders shall severally indemnify the Stockholders' Representative and hold him harmless 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 duties hereunder.
(c) The Stockholders' Representative shall have reasonable access to information about Parent and the reasonable assistance of Company's officers and employees for purposes of performing his duties and exercising his rights hereunder, 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).
(d) A decision, consent or instruction of the Stockholders' Representative shall constitute a decision of 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 the Escrow Fund and shall be final, binding and conclusive upon each such Company Stockholders, and the Escrow Agent certifying and itemizing in reasonable detail Parent may rely upon any amounts to which the Stockholders’ Representative decision, act, consent or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims instruction of the Stockholders’ ' Representative submitted pursuant as being the decision, act, consent or instruction of each and every such Company Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to Section 11.3 from the Escrow Fund any person for any acts done by delivering to them in accordance with such decision, act, consent or instruction of the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims' Representative.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) The Stockholders shall at all times maintain a representative (the “Stockholders’ Representative”) for the purposes described in this Agreement, including the taking of actions and the giving of consents on behalf of the adoption of Major Stockholders prior to the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement Closing and the appointment of Effective Time Company Holders from and after the Closing as specified herein. The Major Stockholders hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the initial Stockholders’ Representative. The approval and adoption of this Agreement by the Stockholders and the acceptance of the Merger Consideration by the 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 (or any then acting successor pursuant to the terms hereof) as the attorney-in-fact and agent of each Effective Time Company Holder 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, whether by the death or incapacity of any individual Effective Time Company Holder or 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 so 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) (A) dispute or refrain from disputing, or approve, any claim made by an Eclipsys Indemnified Party under this Agreement that may be satisfied from the Escrow Fund, (B) authorize payment of any claim to 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 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 representations made by the Stockholders’ Representative on behalf of the Effective Time Company Holders pursuant hereto shall be binding upon the Major Stockholders and the Effective Time Company Holders, as applicable, including all actions and consents under the Escrow Agreement.
(d) The Stockholders’ Representative 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 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 by the Stockholders and the acceptance of the Merger Consideration by the Effective Time Company 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 of them for Damages with respect to any action taken or any omission by the 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 may suffer or incur in connection with any action taken or any omission by the Stockholders’ Representative, except to give and receive notices and communicationsthe extent such Damages are caused by the Stockholders’ Representative’s bad faith, to authorize delivery to Parent of Escrow Sharesfraud or criminal misconduct.
(f) To the fullest extent permitted by applicable law, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 each of the Merger Agreement and comply with orders of courts and awards of Arbitrator(sEffective Time Company Holders hereby (i) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of irrevocably appoints the Stockholders’ Representative as such Effective Time Company Holder’s agent for the accomplishment service of the foregoing.
11.2 Any successor Stockholders’ Representative appointed any and all legal process, summons, notices and documents which may be served in any action or proceeding under or pursuant to Section 10.1(lthis Agreement, (ii) waives any requirement of the Merger Agreement shall automatically, without personal notice or any further action or notice, become claim that service on the Stockholders’ Representative for 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 purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of actions taken by the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses on its behalf pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementforegoing authorization.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Sources: Merger Agreement (Eclipsys Corp)
Stockholders’ Representative. 11.1 By (a) Effective upon and by virtue of the adoption vote of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Stockholders approving and adopting this Agreement and the appointment Merger pursuant to the Written Consent, and without any further act of ▇▇▇▇ ▇▇▇▇▇ as any of the Stockholders, the Stockholders’ RepresentativeRepresentative shall be hereby appointed as the representative of the Holders and as the attorney-in-fact and agent for and on behalf of each such Holder for purposes of this Agreement and the Escrow Agreement and will take such actions to be taken by the Stockholders’ Representative 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, to give including (i) taking all actions and receive notices and communications, to authorize delivery to Parent making all filings on behalf of Escrow Shares, Escrow Cash such Holders with any Governmental Authority or other property from Person necessary to effect the consummation of the transactions contemplated by this Agreement or the Escrow FundAgreement, to object to such deliveries, to agree (ii) agreeing to, negotiatenegotiating, enter entering into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply complying with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderto, and to take otherwise administering and handling any claims under this Agreement or the Escrow Agreement on behalf of such Holders, including indemnifications claims, (iii) negotiating and executing any waivers or amendments of this Agreement or the Escrow Agreement (provided that any amendment that shall adversely and disproportionately affect the rights or obligations of 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 reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of foregoing or contemplated by the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes terms of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of Agreement or the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Escrow Agreement. The Stockholders’ Representative may from time hereby accepts such appointment. The Stockholders’ Representative shall use commercially reasonable efforts based on contact information available to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of keep the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash Holders reasonably informed with respect to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims actions of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering authority granted the Stockholders’ Representative under this Agreement which actions have a material impact on the amounts payable to the Holders. Each Holder shall promptly provide written notice to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of any change of address of such claimsHolder.
Appears in 1 contract
Sources: Merger Agreement (Symbion Inc/Tn)
Stockholders’ Representative. 11.1 By virtue (a) The Stockholders hereby irrevocably appoint the Stockholders’ Representative as the exclusive proxy, representative, agent and attorney-in-fact of each of the adoption Stockholders for all purposes under this Agreement, with full power of substitution, to 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 Merger Agreement intent and implement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and of, this Agreement and the Ancillary Agreements contemplated hereunder, and to facilitate the consummation 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 in connection with any and all claims for indemnification brought pursuant to this 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, such Stockholders who, immediately prior to the 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 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 create any partnership or other fiduciary or similar relationship between the Stockholders’ Representative or any Stockholder.
(b) Without limiting the generality of ▇▇▇▇ ▇▇▇▇▇ the foregoing, the Stockholders’ Representative shall be granted the power to take any of the following actions on behalf of such Stockholders: (i) to execute and deliver this Agreement and the Ancillary Agreements (in each case, with such modifications or changes therein as to which the Stockholders’ 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 notices, communications and communicationsconsents 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 Parent any Indemnified Party of Escrow Shares, Escrow Cash cash or other property from the General Escrow FundAccount 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, defend, contest or litigate any Litigation initiated by any Person against the Stockholders’ Representative or the General Escrow Amount; (viii) to object receive process on behalf of any or all such Stockholders in any such Litigation; (ix) to such deliveries, to agree to, negotiate, enter into settlements and compromises comprises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement resolve and comply with orders of courts and awards of Arbitrator(s) 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 Indemnitees hereunderamounts 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 appropriate proper or convenient in connection with or to consummate the reasonable judgment 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 for by the accomplishment 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 foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) heirs, executors, administrators, estates, personal representatives, successors and assigns of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses 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 indemnifythe direct authorization of, defend the Stockholders, and hold harmless 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 his affiliates 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 Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 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 Stockholders’ Representative’s conduct or 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 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 termination of this Agreement. The Stockholders’ Representative may from time shall have the right to time deliver claims cause the satisfaction of some or all of such indemnification obligations using any then available proceeds contained in the Reserve Amount. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel, advisor or expert, and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, and the Stockholders’ Representative shall not be liable to the Stockholders or any other person in connection therewith. In no event shall the Stockholders’ Representative be liable hereunder or in connection herewith for any consequential, indirect, incidental, special, unforeseen, exemplary or punitive damages, including diminution of value, loss of business or reputation or opportunity, and in particular, without limitation, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of Losses. The Stockholders’ Representative shall not be liable to any Stockholder for any action taken or omitted by the Stockholders’ Representative under this Agreement, the Escrow Agent certifying and itemizing Agreement or any other document executed or delivered hereunder, or in reasonable detail connection therewith, except that the Stockholders’ Representative shall not be relieved of any amounts liability imposed by law to which the extent it is finally determined to have primarily resulted from fraud or willful misconduct of the Stockholders’ Representative.
(i) Under no circumstances does Buyer have any obligations with regard to any Stockholder, the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution any Affiliates of any Escrow Shares Stockholder or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant Representative, except payment of amounts set forth herein not to Section 11.3 from exceed the Escrow Fund by delivering to Base Enterprise Value plus the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsMilestone Payments, if payable.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Endo International PLC)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Each Seller hereby ---------------------------- irrevocably constitutes and this Agreement and the appointment of appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (together with her permitted successor hereunder, the "Sellers' Representative"), as such Seller's true and lawful agent and attorney-in-fact to enter into any agreement in connection with the Stockholders’ Representativetransactions contemplated hereunder, to exercise all or any of the powers, authority and discretion conferred on such Seller hereunder, to receive payment of such Seller's allocable portion of the cash consideration on behalf of such Seller, to give and receive notices on such Seller's behalf and communicationsto represent such Seller with respect to any matter, suit, claim, action or proceeding arising with respect to authorize delivery any transaction contemplated by this Agreement, including the defense, appeal or settlement of any claim, action or proceeding for which such Seller may be obligated to Parent of Escrow Sharesindemnify any person pursuant to this Agreement or which may be brought by the Purchaser against such Seller to enforce such indemnity, Escrow Cash or other property from and the Escrow FundSellers' Representative hereby agrees to act as, and to object to such deliveries, to agree to, negotiate, enter into settlements undertake the duties and compromises responsibilities of, such agent and demand dispute resolution attorney-in-fact. Each Seller hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Sellers' Representative in the exercise of the power of attorney granted to the Sellers' Representative pursuant to this Section, which power of attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Seller. If the Sellers' Representative shall be unable to serve in such capacity, each Seller hereby agrees that her successor shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Notwithstanding the appointment of the Sellers' Representative as the Sellers' attorney-in-fact, as aforesaid, it is expressly understood and agreed that the Purchaser shall be entitled to delivery at Closing of the following documents, pursuant to Section 10 1.9 hereof, executed by the appropriate one or ones of the Merger Agreement Sellers and comply with orders of courts and awards of Arbitrator(snot Sellers' Representative:
a) with respect to claims of Indemnitees hereunder, and to take all actions necessary The Endorsed Certificates or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.Stock Powers; and
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Stock and Real Estate (Eastern Environmental Services Inc)
Stockholders’ Representative. 11.1 By virtue 10.6.1 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the adoption Stockholders will be taken by the Stockholders’ Representative as a representative of the Merger Agreement Stockholders on behalf thereof. The initial Stockholders’ Representative will be ICV Manager LLC. Upon its resignation, the Escrow Contributors shall holders of a majority of the voting power of the Company Securities at any time prior to the Closing may designate a successor Stockholders’ Representative. Any Stockholders’ Representative so designated must be deemed reasonably acceptable to have approved the indemnification provisions set forth Purchaser.
10.6.2 Any change in the Merger Agreement Stockholders’ Representative will become effective upon notice in accordance with Section 10.2.
10.6.3 Except as otherwise provided in this Agreement, any right or action that may be taken at the election of the Stockholders will be taken by the Stockholders’ Representative on behalf thereof. Each of the Stockholders hereby irrevocably appoint the Stockholders’ Representative as the agent and attorney-in-fact of each of the Stockholders for the purposes of acting in the name and stead of such Stockholder in: (a) receiving, holding and distributing the Transaction Consideration and paying any associated costs and expenses of the transactions hereunder required to be paid by such Stockholder; (b) giving and receiving all notices permitted or required by this Agreement and acting on the appointment Stockholders behalf hereunder for all purposes specified herein; (c) delivering the certificates or instruments of ▇▇▇▇ ▇▇▇▇▇ transfer for the Shares endorsed or executed by the Stockholders to the Purchaser at Closing and any and all assignments relating thereto; (d) agreeing with the Purchaser as to any amendments to this Agreement which the Stockholders’ Representative may deem necessary or advisable, including the extension of time in which to consummate the transactions contemplated by this Agreement, and the waiver of any closing conditions; (e) employing legal counsel on behalf of the Stockholders; (f) paying any legal, accounting, investment banking, and any other fees and expenses incurred by the Stockholders’ Representative in consummating the transactions contemplated by this Agreement; (g) defending or settling claims arising under this Agreement; and (h) making, executing, acknowledging, and delivering all such contracts, orders, receipts, notices, requests, instructions, certificates, letters, and other writings, and in general doing all things and taking all actions which the Stockholders’ Representative, in its sole discretion, may consider necessary or proper in connection with or to give carry out the terms of this Agreement, as fully as if such Stockholders were personally present and receive notices acting. This power of attorney and communications, all authority conferred hereby is granted and conferred subject to authorize delivery the interests of the other Parties to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofthis Agreement, and demand dispute resolution pursuant to Section 10 in consideration of those interests and for the Merger Agreement purpose of completing the transactions contemplated hereby, this power of attorney and comply with orders all authority conferred hereby shall be irrevocable and shall not be terminated by the Stockholders or by operation of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderLaw, and to take all actions necessary or appropriate in whether by the reasonable judgment termination of the Stockholders’ Representative for or by the accomplishment occurrence of any other event. If any Stockholder who is an individual should die or become incompetent or incapacitated, or any Stockholder that is a legal entity should be dissolved, liquidated or wound up any other event should occur before the foregoing.
11.2 Any successor Stockholders’ Representative appointed delivery of certificates or other instruments of transfer representing the Shares pursuant to Section 10.1(l) this Agreement, such certificates and instruments shall nevertheless be delivered by or on behalf of such Stockholder in accordance with the Merger Agreement shall automaticallyterms and conditions of this Agreement, without any further action or notice, become and all actions taken by the Stockholders’ Representative pursuant to this Agreement shall be as valid as if such death, incompetence, incapacity, dissolution, termination or winding up or other event had not occurred, regardless of whether the Purchaser or the Stockholders’ Representative, or any of them, shall have received notice of such death, incompetence, incapacity, or other event. The Stockholders’ Representative will be promptly reimbursed by the Stockholders for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs reasonable expenses, disbursements and expenses of advances incurred by the Stockholders’ Representative in such capacity upon demand. The Stockholders, severally and not jointly, agree to indemnify, defend indemnify and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain lossesand from any loss, liabilities and expenses pursuant to Section 10.1 liability, expense, charge, damages, claims or other obligations it may incur as a result of the Merger Agreement. The Stockholders’ Representative its duties hereunder or any of its actions or inactions as such, except as may result from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative Representative’s actions that would constitute fraud, willful misconduct or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementgross negligence.
11.4 At 10.6.4 The Purchaser shall be entitled to rely on the time actions of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of instructions and communications from the Stockholders’ Representative submitted pursuant Representative, and the Purchaser shall have no liability to Section 11.3 from the Escrow Fund by delivering any Stockholder under this Agreement arising out of or related to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsactions, instructions or communications.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of the Merger Agreement the Escrow Contributors "Stockholders' Representative" shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇mean Thom▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇ any person appointed as a successor Stockholders' Representative pursuant to Section 1.06(b) hereof.
(b) During the 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 incapacitated, resigns or is 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 Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Majority of any successor Stockholders' Representative shall be provided to GRS promptly after it shall have been effected.
(c) The Stockholders' Representative shall be authorized to take any action and 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 on their behalf with such changes or amendments thereto as the Stockholders’ Representative, ' Representative shall determine to give be necessary or desirable in his sole and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property absolute discretion. Any party receiving an Instrument from the Escrow Fund, Stockholders' Representative shall have the right to object to rely in good faith upon such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderInstrument, and to take all actions necessary act in accordance with the Instrument without independent investigation.
(d) GRS shall have no liability to any Stockholder or appropriate in otherwise arising out of the reasonable judgment acts or omissions of the Stockholders’ ' Representative for or any disputes among the accomplishment of Stockholders or with the foregoingStockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders' Representative to satisfy any obligations it might have to the Stockholders under this Agreement, any agreement referred to herein or otherwise.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(e) of the Merger Agreement The Stockholders shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ ' Representative from and his affiliates against any and their respective Representatives for certain lossesall claims, liabilities demands, actions, suits, causes of action, damages, costs and expenses pursuant to Section 10.1 (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or brought against the Stockholders' Representative by any person arising out of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative acts or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims omissions of the Stockholders’ ' Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to or any disputes among the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to , unless such Claims allegedly occurred as a result of the aggregate amount of such claimswillful misconduct or negligence by the Stockholders' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement Each Principal Stockholder hereby irrevocably constitutes and this Agreement and the appointment of appoints A▇▇▇▇▇ ▇▇▇▇▇ ▇▇, Jr. (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 (including the Ancillary Agreements) or the 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’ RepresentativeRepresentative shall be deemed to have been validly delivered to each Principal Stockholder, to give (ii) any consent given or waiver of any provision of this Agreement or any other agreement entered into in connection with this Agreement, by the Stockholders’ Representative shall be binding upon each and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofevery Principal Stockholder, and demand dispute resolution pursuant (iii) except as otherwise provided in Section 11.1, the Stockholders’ Representative is hereby authorized to Section 10 execute for and on behalf of each Principal Stockholder any amendment to this Agreement or any other agreement entered into in connection with this Agreement. 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 Principal Stockholder or by operation of law. Neither the Stockholders’ Representative nor any agent employed by it shall incur any Liability to any Principal Stockholder by virtue of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary failure or appropriate in the reasonable judgment refusal of the Stockholders’ Representative for any reason to consummate the accomplishment Transaction or relating to the performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Principal Stockholders, jointly and severally, agree to indemnify the foregoing.
11.2 Any successor Stockholders’ Representative, his successors, assigns, agents, attorneys and affiliates (the “Stockholders’ Representative appointed pursuant Parties”) and to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become hold the Stockholders’ Representative for Parties harmless against any and all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and losses, Liabilities or expenses incurred without bad faith on the part of the Stockholders’ Representative and to indemnifyarising out of or in connection with his duties as Stockholders’ Representative, defend including the reasonable costs and hold harmless expenses incurred by the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail defending against any amounts to which the Stockholders’ Representative claim or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger AgreementLiability in connection herewith.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) Appointment of Stockholders’ Representative. In the event the Stockholders approve the Merger pursuant to the Written Consent, effective as of the adoption date of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and without any further action by the appointment of Stockholders, R▇▇▇▇▇ ▇▇▇▇▇▇▇ will be appointed as agent and attorney-in-fact (the “Stockholders’ Representative”) for each Stockholder receiving Martek Common Stock in the Merger, to give for and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 on behalf of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementStockholder. The Stockholders’ Representative may from time shall have full power and authority to time deliver claims represent all of the Stockholders and their successors with respect to all matters arising under this Agreement and the Escrow Agent certifying Agreement and itemizing in reasonable detail any amounts to which all actions taken by the Stockholders’ Representative hereunder and thereunder shall be binding upon all such Stockholders and their successors as if expressly confirmed and ratified in writing by each of them. The Stockholders’ Representative shall take any and all actions which he believes are necessary or his affiliates or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Stockholders, as fully as if the Stockholders were acting on their respective Representatives are entitled own behalf, including, without limitation, defending all indemnity claims against the Stockholders pursuant to Section 10.1 6.2 of this Agreement (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Martek and its agents regarding such claims, dealing with Martek and the Martek Escrow Agent under this Agreement and the Escrow Agreement with respect to all matters arising under this Agreement and the Escrow Agreement, taking any and all other actions specified in or contemplated by this Agreement and the Escrow Agreement, and engaging counsel, accountants or other Stockholders’ Representatives in connection with the foregoing matters. Without limiting the generality of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2foregoing, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant shall have full power and authority to Section 11.3 from interpret all the terms and provisions of this Agreement and the Escrow Fund by delivering Agreement and to consent to any amendment hereof or thereof on behalf of all such Stockholders and such successors. Notwithstanding the foregoing, each Stockholder shall have the right to exercise any voting rights appertaining to the Martek Escrow Amount. The Stockholders’ Representative and/or shall act as promptly as reasonably possible in carrying out his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claimsduties.
Appears in 1 contract
Stockholders’ Representative. 11.1 (a) By virtue of the adoption of this Agreement, the Merger Agreement Effective Time Holders irrevocably nominate, constitute and appoint the Stockholders’ Representative as the agent and true and lawful attorney-in-fact of the Effective Time Holders, with full power of substitution, to act in the name, place and stead of the Effective Time Holders for purposes of executing, modifying, amending or waiving any documents and taking any actions that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with consenting to, compromising, objecting to or settling any claim for indemnification, compensation or reimbursement under Article 10 or under the Escrow Contributors Agreement.
(b) The Effective Time Holders grant to the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Effective Time Holders (in the name of any or all of the Effective Time Holders 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, in performing its duties as contemplated by Section 11.04(a). Notwithstanding anything to the contrary contained in this Agreement or in any Other Transaction Document: (i) each Parent Indemnified Person shall be deemed entitled to have approved deal exclusively with the indemnification provisions set forth in Stockholders’ Representative on all matters relating to any claim for indemnification, adjustment, compensation or reimbursement under Article 10 or under the Merger Agreement Escrow Agreement; and this Agreement and the appointment (ii) each Parent Indemnified Person shall be entitled to rely conclusively (without further evidence of ▇▇▇▇ ▇▇▇▇▇ as any kind whatsoever) on any document executed or purported to be executed on behalf of any Effective Time Holder by the Stockholders’ Representative, and on any other action taken or purported to give be taken on behalf of any Effective Time Holder by the Stockholders’ Representative, as fully binding upon such Effective Time Holder.
(c) The Effective Time Holders recognize and receive notices intend that the power of attorney granted in Section 11.04(a): (i) is coupled with an interest and communicationsis irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall survive the death or incapacity of any Effective Time Holder.
(d) If the Stockholders’ Representative shall die, resign, become disabled or otherwise be unable to authorize delivery fulfill its responsibilities hereunder, the Effective Time Holders shall (by consent of at least a majority in interest of the Effective Time Holders), within 30 days after such death, disability or inability, appoint a successor to the Stockholders’ Representative (who shall be reasonably satisfactory to Parent) and immediately thereafter notify Parent of Escrow Sharesthe identity of such successor. Any such successor shall succeed the Stockholders’ Representative as the “Stockholders’ Representative” hereunder. If for any reason there is no Stockholders’ Representative at any time, Escrow Cash or other property from all references herein to the Escrow FundStockholders’ Representative shall be deemed to refer to the Effective Time Holders.
(e) Parent shall pay the Stockholders’ Representative Amount directly to the Stockholders’ Representative at the Closing to be used as determined by the Stockholders’ Representative to satisfy costs, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment expenses and/or liabilities of the Stockholders’ Representative for in connection with matters related to this Agreement and/or the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallyOther Transaction Documents, without with any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses balance of the Stockholders’ Representative and Amount not used for such purposes to indemnify, defend and hold harmless be paid by the Stockholders’ Representative and his affiliates and to the Effective Time Holders in accordance with their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. Pro Rata Shares.
(f) The Stockholders’ Representative may from time shall not be liable to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Effective Time Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or his affiliates or their respective Representatives are entitled omitted pursuant to Section 10.1 the advice of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent counsel shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount be conclusive evidence of such claimsgood faith.
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)
Stockholders’ Representative. 11.1 By virtue (a) Upon APP Stockholder Approval, each of the adoption of the Merger Agreement the Escrow Contributors shall Participants will be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of irrevocably appointed ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, M.D., as its, his or her true and 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 Escrow Participants with regard to matters pertaining to (i) the indemnification of the Wisconsin Indemnified Parties referred to in this Article IX, including the power to compromise any Claim on behalf of such Escrow Participant, and (ii) all matters under the Escrow Agreement or relating to the Escrow Shares.
(b) The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and FHC Wisconsin and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. By their appointment of the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take Participants thereby confirm all actions necessary or appropriate in the reasonable judgment of that the Stockholders’ Representative for shall do or cause to be done by virtue of its appointment as the accomplishment representative of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger AgreementEscrow Participants hereunder. The Stockholders’ Representative may from time to time deliver claims to shall act for the Escrow Agent certifying Participants on all of the matters set forth in this Article IX and itemizing the Escrow Agreement in reasonable detail any amounts to which the manner the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant believes to Section 10.1 be in the best interest of the Merger Escrow Participants and consistent with this Article IX and the Escrow Agreement.
11.4 At , but the time of the distribution of any Escrow Shares or Escrow Cash Stockholders’ Representative shall not be responsible to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to Participant for any damages which the retention of Escrow Shares and/or Escrow Cash Participant may suffer by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by performance (including any Parent Indemnitees, the Escrow Agent shall first pay claims damages arising out of the Stockholders’ Representative’s negligence) of the Stockholders’ Representative’s duties hereunder, other than damages arising from willful violation of applicable Law or willful misconduct in the performance of such duties hereunder. The Stockholders’ Representative submitted pursuant to Section 11.3 from shall not have any duties or responsibilities except those expressly set forth in this Agreement or the Escrow Fund Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders’ Representative shall pay all of the expenses incurred by delivering to the Stockholders’ Representative and/or his designees in performing its duties hereunder. The Stockholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Escrow Shares having Participant or FHC Wisconsin, or any other evidence deemed by the Stockholders’ Representative to be reliable, and the Stockholders’ Representative shall be entitled to act on the advice of counsel selected by it.
(c) The Stockholders’ Representative is an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount intended beneficiary of such claimsthis Section 9.6.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of the adoption of the Merger Agreement the Escrow Contributors (a) The “Stockholders Representative” shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of ▇▇▇▇▇▇ ▇▇▇▇▇ , who may be replaced by the Company prior to the Effective Time. The Stockholders Representative shall be constituted and appointed as agent and attorney-in-fact for and on behalf of each of the Stockholders’ RepresentativeCompany Stockholders and the Company Vested Stock Optionholders receiving consideration pursuant to Article I. The Stockholders Representative shall have full power and authority to represent all such Company Stockholders and Company Vested Stock Optionholders and their respective successors with respect to all matters arising under this Agreement and the Indemnity Agreement and all actions taken by the Stockholders Representative hereunder and thereunder shall be binding upon all such Company Stockholders and Company Vested Stock Optionholders and their respective successors as if expressly confirmed and ratified in writing by each of them. The Stockholders Representative shall take any and all actions which it believes is necessary or appropriate under this Agreement and the Indemnity Agreement for and on behalf of such Company Stockholders and Company Vested Stock Optionholders, to give as fully as if the Company Stockholders and receive notices and communicationsthe Company Vested Stock Optionholders were acting on their own behalf, to authorize delivery to Parent of Escrow Sharesincluding, Escrow Cash or other property from the Escrow Fundwithout limitation, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution defending all indemnity claims pursuant to Section 10 of 8.2, consenting to, compromising or settling all such indemnity claims, conducting negotiations with Parent and the Merger Indemnity Agent under this Agreement and comply with orders of courts the Indemnity Agreement, taking any and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderall other actions specified in or contemplated by this Agreement and the Indemnity Agreement, and to take all actions necessary engaging counsel, accountants or appropriate other Stockholders Representatives in connection with the reasonable judgment of foregoing matters. Without limiting the Stockholders’ Representative for the accomplishment generality of the foregoing.
11.2 Any successor Stockholders’ , the Stockholders Representative appointed pursuant shall have full power and authority to Section 10.1(l) interpret all the terms and provisions of this Agreement and the Indemnity Agreement and to consent to any amendment hereof or thereof on behalf of all such Company Stockholders and Company Vested Stock Optionholders and such successors. The Person designated to serve as the Stockholders Representative may be changed by the holders of a majority in interest of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement. The Stockholders’ Representative may Indemnity Fund from time to time deliver claims upon not less than ten (10) days prior written notice to Parent. No bond shall be required of the Stockholders Representative, and the Stockholders Representative shall receive no compensation for services. Any expenses incurred by the Stockholders Representative in connection with its services hereunder shall be reimbursed from the Indemnity Fund upon presentation of appropriate expense documentation as and to the Escrow Agent certifying and itemizing extent expressly provided in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Indemnity Agreement.
11.4 At (b) The Stockholders Representative shall not be liable to the time Company Stockholders or the Company Vested Stock Optionholders for any act done or omitted hereunder or under the Indemnity Agreement as Stockholders Representative while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. The Company Stockholders and the Company Vested Stock Optionholders shall severally indemnify the Stockholders Representative and hold it harmless from and against any loss, liability or expense incurred without gross negligence or bad faith on the part of the distribution Stockholders Representative and arising out of or in connection with the acceptance and administration of its duties hereunder.
(c) The Stockholders Representative shall treat confidentially and not disclose any Escrow Shares nonpublic information from or Escrow Cash about the Company to any Escrow Contributors pursuant anyone (except on a need to Section 8.1 or Section 8.2, and subject know basis to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant individuals who agree to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of treat such claimsinformation confidentially).
Appears in 1 contract
Sources: Merger Agreement (Tellabs Inc)
Stockholders’ Representative. 11.1 By virtue The Stockholders’ Representative shall have the full and exclusive authority to (i) agree with Parent 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 adoption agreement of the Merger Stockholders, give and receive notices 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 this Agreement or the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth Agreements, all in the Merger Agreement and this Agreement and the appointment absolute discretion of ▇▇▇▇ ▇▇▇▇▇ as the Stockholders’ Representative, to give (ii) in general, do all things and receive notices perform all acts, including without limitation executing and communicationsdelivering all agreements, to authorize delivery to Parent of Escrow Sharescertificates, Escrow Cash or other property from the Escrow Fundreceipts, to object to such deliveriesconsents, to agree toelections, negotiate, enter into settlements and compromises ofinstructions, and demand dispute resolution pursuant other instruments or documents contemplated by, or deemed by the Stockholders’ Representative to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderbe necessary or advisable in connection with, this Agreement, and to (iii) take all actions necessary or appropriate desirable in connection with the reasonable judgment defense or settlement of any indemnification claims pursuant to Article 9 and performance of obligations under Article 3. All decisions by the Stockholders’ Representative for shall be binding upon all Stockholders, and no Stockholder shall have the accomplishment of right to object, dissent, protest or otherwise contest the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreementsame. The Stockholders’ Representative may from time communicate with any Stockholder or any other Person concerning his responsibilities hereunder, but it is not required to time deliver claims to do so, provided, however, that until the Escrow Agent certifying and itemizing in reasonable detail any amounts to which final distribution of the Escrowed Funds, the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant shall respond to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands reasonable requests made by any Parent Indemnitees, Stockholder with respect to the Escrow Agent shall first pay claims Agreements. The Stockholders’ Representative has a duty to serve in good faith the interests of Stockholders and to perform its designated role under this Agreement, but the Stockholders’ Representative submitted pursuant shall have no financial liability whatsoever to Section 11.3 from the Escrow Fund 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 delivering to an act of willful misconduct or gross negligence. Parent acknowledges and agrees that the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal may resign as Stockholders’ Representative at any time by written notice delivered to each Stockholder and to Parent, and that upon such resignation the aggregate amount of such claimsStockholders shall promptly select a successor Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Smucker J M Co)
Stockholders’ Representative. 11.1 By virtue The Stockholders hereby appoint the Institutional Stockholder as their representative from the date hereof, such representative shall be the "Stockholders' Representative". The Stockholders' Representative is hereby authorized to act as each Stockholder's representative and the Stockholders each agree that the Buyer may rely, without enquiry, upon any action of the adoption Stockholders' Representative as the act of all of the Merger Stockholders in all matters referred to in this Agreement or the Escrow Contributors shall be deemed Agreement as being carried out by the Stockholders' Representative and further to have approved the indemnification provisions set forth in the Merger Agreement and enter into any agreement with respect to any matter or transaction contemplated by this Agreement and the appointment Agreement. The Stockholders, by their execution of ▇▇▇▇ ▇▇▇▇▇ as this Agreement, also authorize the Stockholders’ Representative, (i) to take all action necessary in connection with the defense, payment and/or settlement of any claims for which the Escrow Amount may be available to indemnify any of the Buyer Indemnitees pursuant to Section 10, (ii) to give and receive all notices and communications, required to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to be given under Section 10 of the Merger this Agreement and comply with orders the Escrow Agreement, (iii) to take any and all additional action as is contemplated to be taken by the Stockholders' Representative by the terms of courts this Agreement or the Escrow Agreement, (iv) negotiate and awards enter into amendments to this Agreement and the Escrow Agreement for and on behalf of Arbitrator(s) with respect to claims of Indemnitees hereunderthe Stockholders, and (v) to take all actions necessary or appropriate in the reasonable judgment of the Stockholders’ Representative for the accomplishment of any of the foregoing.
11.2 . At any time the Institutional Stockholder may agree to appoint another person (or persons, acting jointly and severally) as the Stockholders' Representative in substitution for the existing Stockholders' Representative. Such successor shall agree in writing to accept the appointment in accordance with the terms of this Agreement and such appointment shall be promptly notified to the Buyer in writing. Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further decision or action or notice, become by the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of hereunder, including any agreement between the Stockholders’ Representative and Buyer relating to indemnifythe determination of the defense, defend and hold harmless payment or settlement of any claims for which the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses Escrow Amount may be available to indemnify any of the Buyer Indemnitees pursuant to Section 10.1 10, shall constitute a decision or action of all Stockholders and shall be final, binding and conclusive upon each such Stockholder. No Stockholders shall have the right to object to, dissent from, protest or otherwise contest the same and the Buyer and Buyer Indemnitees are hereby relieved from any liability to any Stockholder for any acts done by them in accordance with the instruction, decision, or act of the Merger AgreementStockholder’s Representative. The Stockholders’ Representative may from time to time deliver claims to shall receive no compensation for its services hereunder or under the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue (a) Prior to the mailing of the adoption Proxy Statement, the Company shall irrevocably appoint one or more Persons to act as the representative, attorney-in-fact and agent of the Merger Agreement stockholders of the Escrow Contributors shall be deemed Company effective immediately prior to have approved the indemnification provisions set forth Effective Time, with full power of substitution to act in the Merger Agreement name, place and this Agreement stead of the stockholders of the Company immediately prior to the Effective Time (other than the CC ESOP) (such Person and any successor or successors, the appointment of ▇▇▇▇ ▇▇▇▇▇ as the “Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to ”). The parties hereto agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of that the Stockholders’ Representative for shall have the accomplishment right to act on behalf of the foregoing.
11.2 Any successor Stockholders’ Representative appointed stockholders of the Company immediately prior to the Effective Time, in determining post-Closing the Merger Consideration Adjustment (including the related dispute resolution provisions) and in connection with the Specified Properties Dispositions pursuant to Section 10.1(l) of the Merger Agreement shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs 3.4 and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Agreement3.5 hereof. The Stockholders’ Representative may from time resign such position at any time, effective with respect to time deliver claims each stockholder of the Company immediately upon written notice of such resignation delivered to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which Company by such resigning Stockholders’ Representative. The Company shall immediately appoint as the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 the Person set forth in the notice of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash resignation delivered by the Escrow Agent pursuant to Section 8.1 resigning Stockholders’ Representative. Upon the death or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims disability of the Stockholders’ Representative, the Company shall immediately appoint a successor Stockholders’ Representative submitted pursuant who shall have been a stockholder of the Company at the Effective Time.
(b) The Stockholders’ Representative will not be liable to Section 11.3 the stockholders of the Company immediately prior to the Effective Time for any act taken or omitted by it as permitted under this Agreement and the post-Closing transactions contemplated hereby, except if such act is taken or omitted in bad faith or by willful misconduct. The Stockholders’ Representative will also be fully protected against the stockholders of the Company immediately prior to the Effective Time in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) The holders of Company Common Stock and the holders of Company Options who receive Merger Consideration under this Agreement, in each case immediately prior to the Effective Time, agree to indemnify, from and after the Escrow Fund by delivering to Closing, the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate for, and to hold the Stockholders’ Representative harmless against, any loss, liability or expense incurred without willful misconduct or bad faith on the part of the Stockholders’ Representative, arising out of or in connection with the Stockholders’ Representative duties under this Agreement Conversion Price and/or Escrow Cash equal to and the aggregate amount transactions contemplated hereby, including costs and expenses of successfully defending the Stockholders’ Representative against any claim of liability with respect thereto. The Stockholders’ Representative may consult with counsel of its own choice and will have full and complete authorization and protection for any action taken and suffered by it in good faith and in accordance with the opinion of such claimscounsel.
Appears in 1 contract
Sources: Merger Agreement (Clubcorp Inc)
Stockholders’ Representative. 11.1 By virtue (a) In order to administer efficiently (i) the implementation of the adoption Agreement on behalf of the Merger Agreement NSC stockholders and (ii) the Escrow Contributors shall be deemed settlement of any dispute with respect to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement Agreement, NSC and the appointment of Stockholders hereby designate ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the NSC stockholders' representative (the "Stockholders’ ' Representative").
(b) From and after the Effective Time, NSC and 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 NSC stockholders or the settlement of any dispute, including, without limitation, with regard to matters pertaining to the indemnification provisions of this Agreement and the Escrow Agreement, (ii) to give and receive all notices required to be given under the Agreement and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, Agreement and (iii) to object take any and all additional action as is contemplated to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 be taken by or on behalf of the Merger NSC stockholders by the terms of this Agreement and comply with orders of courts and awards of Arbitrator(sthe Escrow Agreement.
(c) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in In the reasonable judgment of event that the Stockholders’ ' Representative for the accomplishment of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallydies, without any further action becomes legally incapacitated or notice, become resigns from such position,' another individual designated by the Stockholders’ , who shall be identified to Azurel as soon as practicable after the date of this Agreement, shall fill such vacancy and shall be deemed to be the Stockholders' Representative for all purposes of this Agreement; provided, however, that no change in the Stockholders' Representative shall be effective until Azurel is given written notice of such change by the Stockholders.
11.3 The Company Stockholders (d) All decisions and actions by the Stockholders' Representative as provided in this Section 5.14or under the Escrow Agreement shall be binding upon all of, the NSC stockholders, and no NSC stockholder shall have agreed the right to pay certain out-of-pocket costs object, dissent, protest or otherwise contest the same.
(e) By their approval of the Merger, NSC and expenses the NSC stockholders agree that:
(i) Azurel shall be able to rely conclusively on the instructions and decisions of the Stockholders’ ' Representative and as to indemnify, defend and hold harmless any actions required or permitted to be taken by the NSC stockholders or the Stockholders’ ' Representative hereunder and his affiliates under the Escrow Agreement, and their respective Representatives no party hereunder shall have any cause of action against Azurel for certain lossesany action taken by Azurel in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) all actions, liabilities decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the NSC stockholders and no NSC 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; and
(iii) the provisions of this Section 5.14 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by NSC and the NSC stockholders to the Stockholders' Representative and, shall be binding, upon the executors, heirs, legal representatives and successors of each NSC stockholder.
(f) All fees and expenses pursuant incurred by the Stockholders' Representative shall be paid by the NSC stockholders severally to Section 10.1 the extent of their pro rata interest in the Azurel Common Stock.
(g) In taking any action hereunder and under the Escrow Agreement, the Stockholders' Representative shall be protected in relying upon any notice, paper or other document reasonably believed by it to be genuine, or upon any evidence reasonably deemed by it, .in its good faith judgment, to be sufficient; provided, however, that the Stockholders' Representative shall not waive (i) .any rights of the Merger NSC stockholders if such waiver would have the effect Of disproportionately and adversely affecting NSC stockholders which held shares of a particular series of NSC capital stock as compared to NSC stockholders which held other series of NSC capital stock, without the prior consent of the' NSC stockholders which held at least two-thirds of the adversely affected series on an as-converted to common stock basis; (ii) any rights with respect to any individual NSC stockholder(s)' interest(s) if such waiver would have the effect of disproportionately and adversely affecting such individual NSC stockholder(s) as compared to the interests of the other NSC stockholders, without the prior consent of the affected NSC stockholder(s), and (iii) any right of any of the NSC stockholders to receive the Azurel Common Stock, without the prior consent of two-thirds of the NSC stockholders. The Stockholders' Representative shall not be liable to Azurel or the NSC stockholders for any act performed or omitted to be performed by it in the good faith exercise of its duties and shall be liable only in the case' of bad faith or willful misconduct or gross negligence. The Stockholders' Representative may consult with counsel in connection with its duties hereunder and shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel. The Stockholders' Representative shall not be responsible for determining or verifying the authority of any person acting or purporting to .act on behalf of any party to this Agreement. The Stockholders’ ' Representative may from be replaced at any time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative by affirmative vote or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 written consent of a majority of the Merger AgreementNSC stockholders.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract
Sources: Merger Agreement (Proteonomix, Inc.)
Stockholders’ Representative. 11.1 By virtue Stockholders’ Representative.
(a) Each of the adoption Stockholders, by such Stockholder’s execution of this Agreement or a Joinder Agreement, hereby irrevocably appoints the Merger Agreement Stockholders’ Representative as agent and attorney in fact for the Escrow Contributors shall be deemed Company and such Stockholder, and authorizes the Stockholders’ Representative (i) to have approved take all action necessary to consummate the indemnification provisions set forth in the Merger Agreement and transactions contemplated by this Agreement and the appointment Escrow Agreement, or the defense and/or settlement of ▇▇▇▇ ▇▇▇▇▇ any claims for which such Stockholder may be required to indemnify the Purchaser or any other Indemnified Party pursuant to ARTICLE X, (ii) to give and receive all notices required to be given under this Agreement, the Escrow Agreement or the Stockholder Related Agreements, (iii) to authorize delivery to the 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 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 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 Future Product Payments.
(b) All decisions and actions by the Stockholders’ Representative, to give and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(sincluding without limitation (i) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in the reasonable judgment of any agreement between the Stockholders’ Representative and the Purchaser relating to the defense or settlement of any claims for which the accomplishment of Stockholders may be required to indemnify the foregoing.
11.2 Any successor Stockholders’ Representative appointed Purchaser pursuant to Section 10.1(lARTICLE X, and (ii) of the Merger Agreement shall automatically, without any further action or notice, become agreement between the Stockholders’ Representative for and the Purchaser relating to the Escrow Agreement or the determination of the Specified Indebtedness Amount under Section 1.7 or any other matter relating to ARTICLE I or the Future Product Payments, shall be binding upon all purposes of this Agreementthe Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
11.3 (c) The Company Stockholders’ Representative shall not have any liability to any of the parties to this Agreement or to the Stockholders have agreed for any act done or omitted pursuant to pay certain out-of-pocket costs this Agreement as the Stockholders’ Representative while acting in good faith, and expenses any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred without fraud or bad faith on the part of the Stockholders’ Representative and to indemnify, defend and hold harmless arising out of or in connection with the acceptance or administration of the Stockholders’ Representative and his affiliates and their respective Representatives for certain losses, liabilities and expenses pursuant to Section 10.1 of the Merger Representative’s duties under this Agreement. .
(d) The Stockholders’ Representative may from time shall have full power and authority on behalf of each Stockholder to time deliver claims to the Escrow Agent certifying take any and itemizing in reasonable detail all actions on behalf of, execute any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2and all instruments on behalf of, and subject to execute or waive any and all rights of, the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent IndemniteesStockholders under this Agreement, the Escrow Agent Agreement and the Stockholder Related Agreements.
(e) Each of the Stockholders, by such Stockholder’s execution of this Agreement or a Joinder Agreement, agrees, in addition to the foregoing, that:
(i) the Purchaser shall first pay claims be entitled to rely conclusively on the instructions and decisions of the Stockholders’ Representative submitted as to (A) the settlement of any claims for indemnification by the Purchaser pursuant to Section 11.3 from ARTICLE X, (B) actions taken in respect of indemnification claims, Direct Claims, Third-Party Claims, Notices of Claims, the Escrow Fund Specified Indebtedness Amount, and the Future Product Payments, and (C) any other actions required or permitted to be taken by delivering to the Stockholders’ Representative and/or his designees under this Agreement, the Escrow Shares having Agreement and any Stockholder Related Agreement, and no Stockholder shall have any cause of action against the Purchaser for any action taken by the Purchaser in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon the Company and all of the Stockholders and 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 Agreement except for fraud or willful misconduct by the Stockholders’ Representative in connection with the matters described in this ARTICLE XI; and
(iii) the provisions of this ARTICLE XI are independent and severable, are irrevocable and coupled with an aggregate interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, the Escrow Agreement Conversion Price and/or and the Stockholder Related Agreements.
(f) The provisions of this ARTICLE XI shall be binding upon the executors, heirs, legal Representatives, personal Representatives, successor trustees and successors of each Stockholder, and any reference in this Agreement or the Escrow Cash equal Agreement to a Stockholder or the Stockholders shall mean and include the successors to the aggregate amount rights of such claimsthe Stockholders under this Agreement, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. 11.1 By virtue of (a) As used in this Agreement, the adoption of the Merger Agreement the Escrow Contributors "Stockholders' Representative" shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement and the appointment of mean Geor▇▇ ▇▇▇▇ ▇▇▇▇▇ any person appointed as a successor Stockholders' Representative pursuant to Section 1.06(b) hereof.
(b) During the 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 incapacitated, resigns or is 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 Common Stock immediately prior to the Closing of such appointment by written notice. A copy of any appointment by the Majority of any successor Stockholders' Representative shall be provided to GRS promptly after it shall have been effected.
(c) The Stockholders' Representative shall be authorized to take any action and 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 on their behalf with such changes or amendments thereto as the Stockholders’ Representative, ' Representative shall determine to give be necessary or desirable in his sole and receive notices and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property absolute discretion. Any party receiving an Instrument from the Escrow Fund, Stockholders' Representative shall have the right to object to rely in good faith upon such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand dispute resolution pursuant to Section 10 of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunderInstrument, and to take all actions necessary act in accordance with the Instrument without independent investigation.
(d) GRS shall have no liability to any Stockholder or appropriate in otherwise arising out of the reasonable judgment acts or omissions of the Stockholders’ ' Representative for or any disputes among the accomplishment of Stockholders or with the foregoingStockholders' Representative. GRS may rely entirely on its dealings with, and notices to and from, the Stockholders' Representative to satisfy any obligations it might have to the Stockholders under this Agreement, any agreement referred to herein or otherwise.
11.2 Any successor Stockholders’ Representative appointed pursuant to Section 10.1(l(e) of the Merger Agreement The Stockholders shall automatically, without any further action or notice, become the Stockholders’ Representative for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of the Stockholders’ Representative and to indemnify, defend and hold harmless the Stockholders’ ' Representative from and his affiliates against any and their respective Representatives for certain lossesall claims, liabilities demands, actions, suits, causes of action, damages, costs and expenses pursuant to Section 10.1 (including, without limitation, attorneys' fees) (collectively, "Claims") which are hereafter made, sustained or brought against the Stockholders' Representative by any person arising out of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative acts or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims omissions of the Stockholders’ ' Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to or any disputes among the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to , unless such Claims allegedly occurred as a result of the aggregate amount of such claimswillful misconduct or negligence by the Stockholders' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Roofing Services Inc)
Stockholders’ Representative. 11.1 By virtue (i) In order to efficiently administer the transactions contemplated hereby, including (A) the determination of the adoption Closing Total Equity Adjustment and the Net Closing Date Payment, (B) the handling and distribution of the Merger Agreement the Escrow Contributors shall be deemed to have approved the indemnification provisions set forth in the Merger Agreement and this Agreement Adjustment Reserve and the appointment 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 and/or settlement of any claims for which the Stockholders and the Optionees may be required to indemnify the Buyer pursuant to Section 10 hereof, and (F) the prosecution and/or settlement of the FBI Claim, the Stockholders hereby designate H. ▇. ▇▇▇▇ ▇▇▇▇▇ as their representative (the “Stockholders’ Representative”). In connection with the foregoing, the Stockholders’ RepresentativeRepresentative 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.
(ii) 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 and communications, to authorize delivery to Parent of Escrow Shares, Escrow Cash or other property from the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises ofrequired under this Agreement, and demand dispute resolution pursuant (G) to Section 10 take any and all additional action contemplated to be taken by or on behalf of the Merger Agreement and comply with orders Stockholders by the terms of courts and awards of Arbitrator(sthis Agreement.
(iii) with respect to claims of Indemnitees hereunder, and to take all actions necessary or appropriate in In the reasonable judgment of event that the Stockholders’ Representative for becomes unable to perform his responsibilities hereunder or resigns from such position, the accomplishment Stockholders holding, prior to the Closing, a majority of the foregoing.
11.2 Any successor Stockholders’ Representative appointed pursuant Shares shall select another representative to Section 10.1(l) of the Merger Agreement fill such vacancy and such substituted representative shall automatically, without any further action or notice, become be deemed to be the Stockholders’ Representative for all purposes of this AgreementAgreement and the documents delivered pursuant hereto.
11.3 The Company (iv) All decisions and actions by the Stockholders’ Representative, including without limitation (A) any agreement between the Stockholders’ Representative and 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 the Stockholders and the Optionees may be required to indemnify the Buyer pursuant to Section 10 hereof, or (E) the prosecution and/or settlement of the FBI Claim, shall be binding upon all of the Stockholders, and no Stockholder shall have agreed the right to pay certain out-of-pocket costs object, dissent, protest or otherwise contest the same.
(v) By his or its execution of this Agreement, each Stockholder agrees that:
A. the Buyer shall be able to rely conclusively on the instructions and expenses decisions of the Stockholders’ Representative as to (1) the determination of the 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 indemnifySection 10 hereof, defend and hold harmless (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 his affiliates and their respective Representatives no Party shall have any cause of action against the Buyer for certain losses, liabilities and expenses pursuant to Section 10.1 any action taken by the Buyer in reliance upon the instructions or decisions of the Merger Agreement. The Stockholders’ Representative may from time to time deliver claims to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreement.Representative;
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2B. all actions, decisions and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims instructions of the Stockholders’ Representative submitted pursuant to Section 11.3 from shall be conclusive and binding upon all of the Escrow Fund by delivering to Stockholders and no Stockholder shall have any cause of action against the Stockholders’ Representative and/or his designees Escrow Shares having for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
C. the provisions of this Section 2(g) are independent and severable, are irrevocable and coupled with an aggregate interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
D. remedies available at law for any breach of the provisions of this Section 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 of each Stockholder, and any references in this Agreement Conversion Price and/or Escrow Cash equal to a Stockholder or the Stockholders shall mean and include the successors to the aggregate amount Stockholder’s rights hereunder, whether pursuant to testamentary disposition, the laws of such descent and distribution or otherwise.
(vi) All liabilities, claims, obligations, fees and expenses (including reasonable attorneys’ fees) incurred by the Stockholders’ Representative (other than to the extent arising out of the Stockholders’ Representative’s fraud or willful breach of this Agreement) shall be paid by the Stockholders and (pursuant to the terms of the Optionee Agreement) Optionees based on their pro rata number of shares of Common Stock (on a fully diluted basis as if the Options had been exercised in full).
Appears in 1 contract
Sources: Stock Purchase Agreement (American Management Systems Inc)
Stockholders’ Representative. 11.1 By virtue (a) In the event the Stockholders approve the Merger, effective upon such vote and without any further action by the Stockholders, the Company and, by their approval and adoption of this Agreement, the Stockholders hereby appoint the Principal Officer as agent and attorney-in-fact (as such, the “Stockholders’ Representative”) for each Stockholder receiving Bionik Common Stock in the Merger, for and on behalf of the adoption Stockholders. The Stockholders’ Representative shall have full power and authority to represent all of the Merger Agreement the Escrow Contributors shall be deemed Stockholders and their successors with respect to have approved the indemnification provisions set forth in the Merger Agreement and all matters arising under this Agreement and the appointment Escrow Agreement and all actions taken by the Stockholders’ Representative hereunder and thereunder shall be binding upon all such Stockholders and their successors as if expressly confirmed and ratified in writing by each of ▇▇▇▇ ▇▇▇▇▇ them and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders’ Representative shall take any and all actions which he believes are necessary or appropriate under this Agreement and the Escrow Agreement for and on behalf of the Stockholders, as fully as if the Stockholders were acting on their own behalf, including, without limitation, executing the Escrow Agreement as Stockholders’ Representative, giving and receiving any notice or instruction permitted or required under this Agreement or the Escrow Agreement by the Stockholders’ Representative or any Stockholder, interpreting all of the terms and provisions of this Agreement and the Escrow Agreement, authorizing payments to be made with respect hereto or thereto, defending all indemnity claims against the Stockholders pursuant to Section 6.2 of this Agreement (an “Indemnity Claim”), consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Bionik and its agents regarding such claims, dealing with Bionik and the Escrow Agent under this Agreement and the Escrow Agreement and Bionik under the Registration Rights Agreement with respect to all matters arising under this Agreement, the Escrow Agreement and the Registration Rights Agreement, taking any and all other actions specified in or contemplated by this Agreement, the Escrow Agreement and the Registration Rights Agreement, and engaging counsel, accountants or other Stockholders’ Representatives in connection with the foregoing matters. Without limiting the generality of the foregoing, the Stockholders’ Representative shall have full power and authority to interpret all the terms and provisions of this Agreement, the Escrow Agreement and the Registration Rights Agreement and to consent to any amendment hereof or thereof on behalf of all such Stockholders and such successors. Notwithstanding the foregoing, each Stockholder shall have the right to exercise any voting rights appertaining to the Indemnity Escrow Shares.
(b) The Company hereby authorizes the Stockholders’ Representative, on its and the Stockholders’ behalf (and by their approval of this Agreement and the Merger, the Stockholders hereby authorize the Stockholders’ Representative), to:
(i) Receive all notices or documents given or to give and receive notices and communications, be given to authorize delivery to Parent any of Escrow Shares, Escrow Cash the Stockholders by Bionik pursuant hereto or other property from the Escrow FundAgreement or the Registration Rights Agreement or in connection herewith or therewith and to receive and accept service of legal process in connection with any suit or proceeding arising under this Agreement, the Escrow Agreement or the Registration Rights Agreement;
(ii) Deliver to object Bionik at the Closing all certificates and documents to be delivered to Bionik by any of the Stockholders pursuant to this Agreement, together with any other certificates and documents executed by any of the Stockholders and deposited with the Stockholders’ Representative for such deliveries, to agree to, negotiate, enter into settlements and compromises ofpurpose;
(iii) Engage counsel, and demand dispute resolution such accountants and other advisors for any of the Stockholders and incur such other expenses on behalf of any of the Stockholders in connection with this Agreement, the Escrow Agreement or the Registration Rights Agreement and the transactions contemplated hereby or thereby as the Stockholders’ Representative may in its sole discretion deem appropriate; and
(iv) Take such action on behalf of any of the Stockholders as the Stockholders’ Representative may in its sole discretion deem appropriate in respect of: (A) waiving any inaccuracies in the representations or warranties of Bionik contained in this Agreement or in any document delivered by Bionik pursuant hereto; (B) waiving the fulfillment of any of the conditions precedent to the Company’s obligations hereunder or pursuant to Section 10 the Escrow Agreement or the Registration Rights Agreement; (C) taking such other action as the Stockholders’ Representative or any of the Merger Agreement and comply with orders of courts and awards of Arbitrator(s) with respect to claims of Indemnitees hereunder, and Stockholders is authorized to take under this Agreement, the Escrow Agreement or the Registration Rights Agreement; (D) receiving all actions documents or certificates and making all determinations, on behalf of any of the Stockholders, required under this Agreement, the Escrow Agreement or the Registration Rights Agreement; (E) all such other matters as the Stockholders’ Representative may in its sole discretion deem necessary or appropriate in to consummate this Agreement, the reasonable judgment Escrow Agreement or the Registration Rights Agreement and the transactions contemplated hereby and thereby; and (F) all such action as may be necessary after the Closing Date to carry out any of the transactions contemplated by this Agreement, the Escrow Agreement and the Registration Rights Agreement, including, without limitation, the defense and/or settlement of any claims for which indemnification is sought pursuant to Article VI and any waiver of any obligation of Bionik or the Surviving Company. All actions, decisions and instructions of the Stockholders’ Representative for the accomplishment shall be conclusive and binding upon all of the foregoing.
11.2 Any successor Stockholders and no Stockholder nor any other Person shall have any claim or cause of action against the Stockholders’ Representative appointed pursuant to Section 10.1(l) of the Merger Agreement shall automaticallyRepresentative, without any further action or notice, become and the Stockholders’ Representative shall have no liability to any Stockholder or any other Person, for all purposes of this Agreement.
11.3 The Company Stockholders have agreed to pay certain out-of-pocket costs and expenses of any action taken, decision made or instruction given by the Stockholders’ Representative and in connection with the Escrow Agreement, the Registration Rights Agreement or this Agreement, except in the case of his own willful misconduct.
(c) The Stockholders’ Representative shall incur no liability to indemnifythe Stockholders or the Escrow Agent or any other Person with respect to any action taken or suffered by it in reliance upon any note, defend and hold harmless direction, instruction, consent, statement or other documents reasonably believed by the Stockholders’ Representative to be genuinely and duly authorized by at least a majority in interest of the Stockholders (or the successors or assigns thereto), nor for other action or inaction taken or omitted in good faith in connection herewith or with the Escrow Agreement, in any case except for liability to the Stockholders for his affiliates own willful misconduct. The Stockholders’ Representative shall be indemnified for and shall be held harmless against any loss, liability or expense incurred by the Stockholders’ Representative or any of its Affiliates and any of their respective Representatives for certain partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons, in each case relating to the Stockholders’ Representative’s conduct as Stockholders’ Representative, other than such losses, liabilities or expenses resulting from the Stockholders’ Representative’s willful misconduct in connection with its performance under this Agreement, the Escrow Agreement and expenses the Registration Rights Agreement. This indemnification shall survive the termination of this Agreement. For all purposes hereunder, a majority in interest of the Stockholders shall be determined on the basis of each Stockholder’s ownership of Company Common Stock immediately prior to the Effective Time (assuming the exercise or conversion of all Company Preferred Stock outstanding immediately prior to the Effective Time). The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, the Stockholders’ Representative shall not be liable to the Stockholders or the Escrow Agent or any other person. In no event shall the Stockholders’ Representative be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages.
(d) The Stockholders’ Representative shall have reasonable assistance of Bionik’s officers and employees for purposes of performing the Stockholders’ Representative’s duties under this Agreement, the Escrow Agreement or the Registration Rights Agreement and exercising its rights under this Agreement, the Escrow Agreement and the Registration Rights Agreement, including for the purpose of evaluating any Indemnity Claim against the Indemnity Escrow Amount by Bionik; provided that the Stockholders’ Representative shall treat confidentially and not, except in connection with enforcing its rights or the rights of the Stockholders hereunder or under this Agreement, and the Escrow Agreement, disclose any nonpublic information from or concerning any Indemnity Claim to anyone (except to the Stockholders’ Representative’s attorneys, accountants or other advisers, to Stockholders, to the arbitrators appointed to resolve disputes pursuant to Section 10.1 this Agreement, and on a need-to-know basis to other individuals who agree to keep such information confidential).
(e) In the performance of his duties hereunder, the Merger AgreementStockholders’ Representative shall be entitled to rely upon any document or instrument reasonably believed by him to be genuine, accurate as to content and signed by any Stockholder or Bionik. The Stockholders’ Representative may from time assume that any person purporting to time deliver claims give any notice in accordance with the provisions hereof has been duly authorized to the Escrow Agent certifying and itemizing in reasonable detail any amounts to which the Stockholders’ Representative or his affiliates or their respective Representatives are entitled pursuant to Section 10.1 of the Merger Agreementdo so.
11.4 At the time of the distribution of any Escrow Shares or Escrow Cash to any Escrow Contributors pursuant to Section 8.1 or Section 8.2, and subject to the retention of Escrow Shares and/or Escrow Cash by the Escrow Agent pursuant to Section 8.1 or Section 8.2, as the case may be, in respect of Indemnification Demands made by any Parent Indemnitees, the Escrow Agent shall first pay claims of the Stockholders’ Representative submitted pursuant to Section 11.3 from the Escrow Fund by delivering to the Stockholders’ Representative and/or his designees Escrow Shares having an aggregate Agreement Conversion Price and/or Escrow Cash equal to the aggregate amount of such claims.
Appears in 1 contract