Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Stock Purchase Agreement (Polypore International, Inc.)
Stockholders’ Representative. Each (a) By the execution and delivery of this Agreement, each Stockholder hereby irrevocably authorizes, directs constitutes and appoints James A. Cummings as his true and lawful agent and attorney-in-fact (the "Stockholders' Representative"), ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇ of substitution to act in such Stockholder's name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement, and to act on such Stockholder's behalf in any dispute, litigation or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ ' Representative to (i) take any and all actions (shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, executing the power:
(i) to waive any condition to the obligations of such Stockholder to consummate the transactions contemplated by this Agreement;
(ii) to execute and delivering deliver all ancillary agreements, certificates and documents (including any documentsstock powers, incurring any costs the Deposit Escrow Agreement, the Indemnification Escrow Agreement and expenses all notices contemplated by the Deposit Escrow Agreement and the Indemnification Escrow Agreement), and to make representations and warranties therein, on behalf of such Stockholder and making any and all determinations) which may be required the Stockholders' Representative deems necessary or permitted appropriate in connection with the consummation of the transactions contemplated by this Agreement Agreement;
(iii) to be taken by such Persons; receive on behalf of, and to distribute (iiafter payment of (A) exercise such other rights, power and authority, as are authorized, delegated and granted any unpaid expenses chargeable to the Stockholders’ Representative Stockholders or the Company prior to the Closing in connection with the transactions contemplated by this Agreement, and (B) amounts payable by the Stockholders pursuant to Section 1.3), all amounts payable to such Stockholder under the terms of this Agreement; and and
(iiiiv) exercise to do or refrain from doing any further act or deed on behalf of such rights, power and authority as are incidental Stockholder which the Stockholders' Representative deems necessary or appropriate in its sole discretion relating to the foregoing. Any subject matter of this Agreement, as fully and completely as such actions takenStockholder could do if personally present; provided, exercises of rightshowever, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that (x) the Stockholders’ Representative shall not be liable for have the power to enter into any actions taken or omitted to be taken under or material modifications of this Agreement on behalf of the Stockholders; and (y) the Stockholders’ Representative shall not exercise his powers in connection a manner that is inconsistent with this Agreement or any amendments hereto executed by the transactions contemplated hereby Stockholders.
(b) The appointment of the Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, its affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders' Representative on behalf of the Stockholders in all matters referred to herein. All notices delivered by Buyer or thereby, except the Company (following the Closing) to the Stockholders' Representative (whether pursuant hereto or otherwise) for such actions taken or omitted the benefit of the Stockholders shall constitute notice to 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 believes to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively in the best interest of the Stockholders and consistent with the Stockholders’ Representative on all matters relating to its obligations under this Agreement, but the Stockholders' Representative shall not be responsible to the Stockholders for any loss or damages it or they may suffer by reason of the performance by the Stockholders' Representative of its duties under this Agreement, other than loss or damage arising from willful violation of this Agreement or the law.
(c) Each Stockholder agrees to indemnify and hold harmless the Stockholders' Representative from any loss, damage or expense arising from the performance of its duties as the Stockholders' Representative hereunder, including, without limitation, the cost of legal counsel retained by the Stockholders' Representative on behalf of the Stockholders, but excluding any loss or damage arising from willful violation of this Agreement or the law; provided that this indemnification shall not exculpate the Stockholders' Representative from liability to the Stockholders for damages arising out of actions taken by the Stockholders' Representative beyond the scope of authority granted to the Stockholders' Representative pursuant to this Section 1.6.
(d) All actions, decisions and instructions of the Stockholders' Representative taken, made or given pursuant to the authority granted to the Stockholders' Representative pursuant to this Section 1.6 shall be conclusive and binding upon each Stockholder, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) The provisions of this Section 1.6 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Stockholders to the Stockholders' Representative and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon the executors, heirs, legal representatives, successors and assigns of each such PersonStockholder.
(f) The Stockholders' Representative shall receive and hold each Stockholder's Company Shares until Closing.
(g) The grant of power and authority set forth in this Section 1.6 shall terminate on three months following the first anniversary of the Closing Date.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) Pursuant to the written consent of the Equityholders dated the date hereof, directs the Common Equityholders have constituted, appointed and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act empowered effective from and after the date of such consent, LAC as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”, for the benefit of the Common Equityholders and the exclusive agent and attorney-in-fact to act on behalf of each Common Equityholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and authorizes deliver such waivers, consents and directs amendments (other than (A) the written consent referred to in this sentence and (B) any written consent of the Common Equityholders adopting this Agreement) under this Agreement and the consummation of the transactions contemplated hereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and protect the rights and interests of the Common Equityholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Common Equityholders including, consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Equityholders, and receive process on behalf of any or all Equityholders 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; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to refrain from enforcing any right of the Equityholders 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 Equityholders unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage special counsel, accountants and other advisors and incur such other expenses on behalf of the Equityholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and disburse the Common Per Share Amount, the Preferred Payment, Option Cash Payments, and the Escrow Fund in accordance with the terms of this Agreement.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Equityholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder, (i) the Stockholders’ Representative shall incur no responsibility whatsoever to any Equityholders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Equityholders. Each Common Equityholder shall indemnify, severally and not jointly, based on such Common Equityholder’s Pro Rata Portion, the Stockholders’ Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (i) take including, but not limited to, any and all actions (includingexpense whatsoever reasonably incurred in investigating, without limitationpreparing or defending against any litigation, executing and delivering commenced or threatened or any documentsclaims whatsoever), incurring arising out of or in connection with any costs and expenses on behalf claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Stockholders’ Representative to the Common Equityholders as to the existence of a deficiency toward the payment of any such indemnification amount, each Common Equityholder shall promptly deliver to the Stockholders’ Representative full payment of his or her Pro Rata Portion of the amount of such Stockholder deficiency.
(c) All of the indemnities, immunities and making any and all determinations) which may be required or permitted by powers granted to the Stockholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , all of which actions or omissions shall be legally binding upon the Equityholders.
(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 Equityholder and (iiiii) exercise such rights, power and authority as are incidental to shall survive the foregoing. Any such actions taken, exercises consummation of rights, power or authoritythe Merger, and any decision or determination made action taken by the Stockholders’ Representative consistent therewith, pursuant to the authority granted in this Agreement shall be effective and absolutely and irrevocably binding on each Equityholder notwithstanding any contrary action of or direction from such Person as if such Person personally had taken such actionEquityholder, exercised such rightsexcept for actions or omissions of the Stockholders’ Representative constituting willful misconduct.
(f) Each of the Company, power or authority or made such decision or determination Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative is a party to this Agreement solely to perform certain administrative functions in such Person’s capacityconnection with the consummation of the transactions contemplated hereby. Each Stockholder Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative shall have no liability to, and shall not be liable for any actions taken Losses of, any of the Company, Merger Sub or omitted to be taken under or Parent in connection with any obligations of the Stockholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby or therebyhereby, except for to the extent such actions taken or omitted Losses shall be proven to be taken resulting from Stockholders’ Representative’s the direct result of willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person misconduct by the Stockholders’ Representative as fully binding upon each such Personin connection with the performance of its obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (Bottomline Technologies Inc /De/)
Stockholders’ Representative. Each Stockholder (a) The Stockholders (by virtue of their execution of this Agreement) hereby irrevocably authorizesnominate, directs constitute and appoints appoint ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ as the agent and true and lawful attorney in fact of the Stockholders (the "Stockholders' Representative"), with full power of substitution, to act as sole in the name, place and exclusive representative stead of the Stockholders for such Stockholder (the “Stockholders’ Representative”) purposes of executing any documents and authorizes and directs 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, including in connection with any claim for indemnification. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders' Representative
(ib) take The Stockholders (by virtue of the approval of the Merger and the adoption of this Agreement and their execution of this Agreement) grant to the Stockholders' Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Stockholders (in the name of any or all of the Stockholders or otherwise) any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees documents that the Stockholders’ ' Representative shall not be liable for any actions taken or omitted may, in its sole discretion, determine to be taken under necessary, desirable or appropriate, in connection with 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 8.5(a). Notwithstanding anything to the contrary contained in this Agreement or the transactions contemplated hereby or therebyin any other Ancillary Agreement, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer each Loss Party shall be entitled to deal exclusively with the Stockholders’ ' Representative on all matters relating to this AgreementSection 8, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ ' Representative, and on any other action taken or purported to be taken on behalf of any such Person Stockholder by the Stockholders’ Representative ' Representative, as fully binding upon such Stockholder.
(c) The power of attorney granted in Section 8.5(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 of the Stockholders.
(d) If the Stockholders' Representative shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Stockholders, then the Stockholders representing a majority-in-interest of the Merger Consideration shall, within 10 days after such Persondeath or disability, appoint a successor agent for the Stockholders 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. 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 Stockholders.
(e) 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 Stockholders. All of the indemnities, immunities and powers granted to the Stockholders' Representative under this Agreement shall survive the termination of this Agreement.
(f) By the execution and delivery hereof, including counterparts hereof, each Stockholder hereby agrees that the Stockholders' Representative shall have the right to take appropriate action under this Agreement as he may deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to:
(i) act for each Stockholder with respect to all indemnification matters referred to herein, including the right to compromise or settle any such claim on behalf of any Stockholder;
(ii) act for each Stockholder with respect to all adjustments referred to herein;
(iii) amend or waive any provision hereof (including any condition to Closing) in any manner that does not differentiate among the Stockholders;
(iv) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Stockholders' Representative, in his sole discretion, deems necessary or advisable in the performance of the duties of the Stockholders' Representative;
(v) incur any expenses, liquidate and withhold assets received on behalf of the Stockholders prior to their distribution to the Stockholders to the extent of any amount that the Stockholders' Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing account established solely for such purpose, and to then make distributions to Stockholders in accordance with their proportionate share of the Merger Consideration;
(vi) receive all notices, communications and deliveries hereunder on behalf of the Stockholders; and
(vii) do or refrain from doing any further act or deed on behalf of each Stockholder that the Stockholders' Representative deems necessary or appropriate, in his sole discretion, relating to the subject matter hereof as fully and completely as any Stockholder could do if personally present and acting as though any reference to any Stockholder herein was a reference to the Stockholders' Representative. The Stockholders' Representative shall act for each Stockholder on all matters set forth herein in the manner the Stockholders' Representative believes to be in the best interest of such Stockholder, but the Stockholders' Representative shall not be responsible to any Stockholder for any Damages any Stockholder may suffer by reason of the performance by the Stockholders' Representative of such Stockholders' Representative's duties hereunder, other than loss or damage arising from willful misconduct or gross negligence in the performance of such Stockholders' Representative's duties hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints by signing this Agreement, designates Warr▇▇ ▇. ▇▇▇▇▇ (▇▇, in the event that Warr▇▇ ▇. ▇▇▇▇▇ ▇▇ unable or unwilling to serve, Stua▇▇ ▇▇▇▇▇▇▇) ▇▇ to act as sole and exclusive be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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, place and stea▇ ▇▇▇ 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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making any the other Stockholders hereunder and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power in consideration of the mutual covenants and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination agreements made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreementherein, and shall be entitled to rely conclusively (without further evidence of irrevocable and shall not be terminated by any kind whatsoever) on any document executed by or purported to be executed on behalf act of any Stockholder or by the Stockholders’ Representativeoperation of law, and on whether by such Stockholder's death or any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personevent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Unicapital Corp)
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby irrevocably authorizes, directs and appoints (ii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify Purchasers pursuant to Section 10 hereof the Stockholders hereby designate ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive their representative for such Stockholder (the “"Stockholders’ ' Representative”").
(b) and authorizes and directs The Stockholders hereby authorize the Stockholders’ ' Representative to (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify Purchasers pursuant to Section 10 hereof; (ii) to give and receive all notices required to be given and received to and from the Stockholders under this Agreement and under any Related Instruments (as defined below), and (iii) to take any and all additional actions (including signing on their behalf) as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement and any agreement or document related thereto (a "Related Instrument").
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his or her responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Closing, a majority of the Shares as set forth on Schedule 1 attached hereto shall select another representative ---------- to fill such vacancy and such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement and any Related Instrument.
(d) All decisions and actions by the Stockholders' Representative, including, without limitation, executing any agreement between the Stockholders' Representative and delivering Purchasers relating to the defense or settlement of any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) claims for-which the Stockholders may be required to indemnify the Purchasers pursuant to Section 10 hereof shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or permitted otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) the Purchasers shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to the determination of the settlement of any claims for indemnification by this Agreement the Purchasers pursuant to Section 10 hereof or any other actions required to be taken by such Persons; the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Purchasers for any action taken by Purchasers in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon 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; and , except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) exercise such rightsthe provisions of this Section 1.4 are independent and severable, power are irrevocable and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, coupled with an interest and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power enforceable notwithstanding any rights or authority or made such decision or determination in such Person’s capacity. Each remedies that any Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or may have in connection with this Agreement or the transactions contemplated hereby or therebyby this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.4 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer Purchasers and the Company shall be entitled to deal exclusively with temporary and permanent injunctive relief without the necessity of proving damages if either of the Purchasers or the Company brings an action to enforce the provisions of this Section 1.4; and
(v) the provisions of this Section 1.4 shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholders’ Representative on all matters relating ' rights hereunder, whether pursuant to this Agreementtestamentary disposition, the laws of descent and shall be entitled to rely conclusively distribution or otherwise.
(without further evidence of any kind whatsoeverf) on any document executed by or purported to be executed on behalf of any Stockholder All reasonable fees and expenses incurred by the Stockholders’ Representative' Representative shall be paid from the funds in Escrow, and on any other action taken or purported to be taken on behalf of any if such Person funds are insufficient, then by the Stockholders’ Representative Stockholders in proportion to their ownership of Shares as fully binding upon each such Person.set forth on Schedule 1 attached hereto. ----------
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) Appointment. The Stockholders, and each of them, hereby irrevocably authorizes, directs and appoints appoint Larry W. Cooper (the "Stockholders' Representative") as their agent ▇▇ (▇) ▇▇. ▇▇▇▇▇▇t, act for and on behalf of, and bind each of the Stockholders in the performance of all of their obligations arising from or relating to this Agreement, including the execution and delivery of any document, certificate or agreement required under this Agreement to be delivered by the Stockholders at the Closing; (ii) accept delivery from the Purchaser of the cash portion of the Purchase Price to the Stockholders in the manner provided in or pursuant to this Agreement; (iii) give and receive notices and receive service of process under or pursuant to this Agreement; (iv) execute and deliver the Escrow Agreement on behalf of the Stockholders, and to represent, act for, and bind each of the Stockholders in the performance of all of their obligations and in securing all their rights arising from or relating to the Escrow Agreement; (v) if the Stockholders' Representative determines legal action is necessary to enforce rights of the Stockholders under this Agreement to assess each Stockholder for a pro rata share of the expenses and if such Stockholder does not remit such amounts within thirty (30) days of written request to exclude such Stockholder entirely from any recovery notwithstanding anything to the contrary in this Agreement, and (vi) to deduct from the proceeds payable to any Stockholder at Closing (A) an amount required for any federal or state withholding or other tax owed by such Stockholder pursuant to the minimum withholding for this transaction required by the applicable regulatory authority and/or the Internal Revenue Service of the United States, (B) an amount required to compensate Matthews & Hawkins, P.A. for rendering legal services in the nego▇▇▇▇▇▇▇ of ▇▇▇▇▇ agreements and this transaction, and the rendering of the requisite legal opinion, and (C) an amount required to compensate Lowry and Watson, P.A. for rendering accounting services in the ne▇▇▇▇▇tion ▇▇ ▇▇▇▇▇ to act se agreements and this transaction. For purposes of this Section 11.1 "pro rata" means the same proportion as sole and exclusive representative that which the total cash proceeds for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses at Closing as set forth on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted Schedule 2.1 hereto bears to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority total cash proceeds for all Stockholders at Closing as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding set forth on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductSchedule 2.1 hereto. The Buyer shall be entitled to deal exclusively with the Stockholders’ ' Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any hereby accepts such Person by the Stockholders’ Representative as fully binding upon each such Personappointment.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Herley Industries Inc /New)
Stockholders’ Representative. (a) Each VNC Stockholder by virtue of the approval and adoption of this Agreement or by accepting any consideration payable or issuable hereunder shall be deemed to have constituted, appointed and empowered the Stockholders’ Representative, for the benefit of the VNC Stockholders, as the exclusive agent and attorney-in-fact to act for and on behalf of each VNC Stockholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to execute and deliver such waivers, consents and amendments (with respect to any and all matters or issues, including those which may have a negative impact on a VNC Stockholder) under this Agreement and the other agreements, documents and instruments executed in connection herewith and the consummation of the transactions contemplated hereby irrevocably authorizesas the Stockholders’ Representative, directs in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and appoints ▇▇protect the rights and interests of the VNC 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, the Paying Agent Agreement, and the other agreements, documents and instruments executed in connection herewith and the transactions provided for herein and therein, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement and the other agreements, documents and instruments executed in connection herewith for and on behalf of the VNC Stockholders, including consenting to, compromising or settling any such claims, conducting negotiations with CHC, the Surviving Company and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any action, proceeding or investigation; (B) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by CHC, the Surviving Company or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the VNC Stockholders, and receive process on behalf of any or all VNC 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; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such action, proceeding or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to refrain from enforcing any right of the VNC Stockholders arising out of or under or in any manner relating to this Agreement and the other agreements, documents and instruments executed in connection herewith; provided, however, that no such failure to act on the part of the 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 VNC Stockholders unless such waiver is in a writing signed by the waiving Party or by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary, proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and the other agreements, documents and instruments executed in connection herewith; (v) to 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 the other agreements, documents and instruments executed in connection herewith; and (vi) to collect, hold and disburse any amounts, including any portion of the Escrow Shares received by Stockholders’ Representative pursuant to the terms hereof in accordance with the terms of this Agreement and the other agreements, documents and instruments executed in connection herewith. ▇▇▇▇ ▇▇▇▇▇ Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the VNC Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the VNC Stockholders. By executing this Agreement the Stockholders’ Representative hereby (x) accepts its appointment and authorization to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”Representative as attorney-in-fact and agent on behalf of the Stockholders in accordance with the terms of this Agreement and (y) agrees to perform its obligations under, and authorizes otherwise comply with, this Section 7.5.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and directs be indemnified by, the VNC Stockholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder, (i) the Stockholders’ Representative shall incur no responsibility whatsoever to any VNC Stockholders by reason of any error in judgment or other act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any VNC Stockholder. Each VNC Stockholder shall indemnify, severally in proportion to its Pro Rata Share and not jointly, the Stockholders’ Representative against all Losses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever (i) take including, but not limited to, any and all actions (includingexpense whatsoever reasonably incurred in investigating, without limitationpreparing or defending against any litigation, executing and delivering commenced or threatened or any documentsclaims whatsoever), incurring arising out of or in connection with any costs and expenses on behalf claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any action or proceeding which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. In the event of any indemnification hereunder, upon written notice from the Stockholders’ Representative to the VNC Stockholders as to the existence of a deficiency toward the payment of any such indemnification amount, each VNC Stockholder shall promptly deliver to the Stockholders’ Representative full payment of such Stockholder and making any and all determinations) which may be required or permitted by VNC Stockholder’s share of the amount of such deficiency in proportion to such VNC Stockholder’s Pro Rata Share. The VNC Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts at the cost and expense of the VNC Stockholders.
(c) All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) CHC and the Surviving Company shall have the right to rely upon all actions taken or omitted to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , all of which actions or omissions shall be legally binding upon the VNC Stockholders.
(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 VNC Stockholder and (iiiii) exercise such rights, power and authority as are incidental to shall survive the foregoing. Any such actions taken, exercises consummation of rights, power or authoritythe Mergers, and any decision or determination made action taken by the Stockholders’ Representative consistent therewith, pursuant to the authority granted in this Agreement shall be effective and absolutely and irrevocably binding on each VNC Stockholder notwithstanding any contrary action of or direction from such Person as if such Person personally had taken such actionVNC Stockholder, exercised such rightsexcept for actions or omissions of the Stockholders’ Representative constituting willful misconduct.
(f) Each of VNC, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder Merger Subs and CHC acknowledges and agrees that the Stockholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of VNC, Merger Subs and CHC acknowledges and agrees that, other than in the Stockholders’ Representative’s role as a VNC Stockholder (if applicable), the Stockholders’ Representative shall have no liability to, and shall not be liable for any actions taken Losses of, any of VNC, Merger Subs or omitted CHC or to be taken under or any Person in connection with any obligations of the Stockholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby or therebyhereby, except for to the extent such actions taken or omitted Losses shall be proven to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence direct result of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person fraud by the Stockholders’ Representative as fully binding upon each such Personin connection with the performance by the Stockholders’ Representative of its obligations hereunder.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (a) J▇▇. ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ to act hereby is irrevocably constituted and appointed as sole the sole, exclusive, true and exclusive lawful agent, representative for such Stockholder and attorney-in-fact of all Stockholders and each of them (the “Stockholders’ Representative”) with respect to any and authorizes all matters relating to, arising out of, or in connection with, the Transaction Documents (other than the Employment Agreements), including for purposes of taking any action or omitting to take action on behalf of Stockholders thereunder. All actions, notices, communications and directs determinations by or on behalf of Stockholders under such documents shall be given or made by the Stockholders’ Representative and all such actions, notices, communications and determinations by the Stockholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all of the Stockholders.
(b) The Stockholders’ Representative will not be liable to any Stockholder for any act taken or omitted by it as permitted under this Agreement, except if such act is taken or omitted in bad faith or by willful misconduct. The Stockholders’ Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof). The Stockholders agree, severally but not jointly, to indemnify the Stockholders’ Representative 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’s carrying out its duties as representative for the Stockholders under this Agreement, 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 counsel.
(c) If the Stockholders’ Representative dies or becomes legally incapacitated, or if a majority of the Stockholders vote to remove the Stockholders’ Representative at any time for any reason, then those other Stockholders holding a majority of the Shares held by such other Stockholders as of the date hereof promptly shall designate in writing to Parent a single individual to replace the deceased, legally incapacitated or removed Stockholders’ Representative as the successor Stockholders’ Representative hereunder. If at any time there shall not be a Stockholders’ Representative or Stockholders so fail to designate a successor Stockholders’ Representative, then Parent may have a court of competent jurisdiction appoint a Stockholders’ Representative hereunder. If the Stockholders’ Representative becomes unable or unwilling, for any reason, to serve as representative for the Stockholders, such other Person or Persons as may be designated by Stockholders holding a majority of the voting interests of the Company, shall succeed the Stockholders’ Representative as the representative of the Stockholders in all matters under this Agreement and the transactions contemplated hereby.
(d) Without limiting the generality of the foregoing, the Stockholders’ Representative is designated as the sole and exclusive agent, representative and attorney-in-fact for Stockholders for all purposes related to this Agreement (including (i) take service of process upon Stockholders, (ii) executing and delivering to Parent or any other Person on behalf of any of or all Stockholders any and all actions instruments, certificates, documents and agreements with respect to the transactions contemplated by the Transaction Documents (includingother than the Employment Agreements), without limitationand any other instrument, executing certificate, document or agreement referred to in Section 8.02, and delivering any documents, incurring any costs and expenses (iii) receipt of all notices on behalf of Stockholders with respect to any matter, suit, claim, action or proceeding arising with respect to the sale of the Shares or any transaction contemplated by the Transaction Documents (other than the Employment Agreements), including the defense, settlement or compromise of any claim, action or proceeding pursuant to Article IX), and Stockholders may act, with respect to all matters under the Transaction Documents (other than the Employment Agreements), only through the Stockholders’ Representative. Parent shall be entitled to rely on the authority of the Stockholders’ Representative as the agent, representative and attorney-in-fact of Stockholders for all purposes under the Transaction Documents (other than the Employment Agreements) and shall have no liability for any such reliance. None of Stockholders may revoke the authority of the Stockholders’ Representative. Each Stockholder hereby ratifies and making confirms, and hereby agrees to ratify and confirm, any and all determinations) which may be required or permitted by this Agreement to be action taken by such Persons; (ii) the Stockholders’ Representative in the exercise such other rights, power and authority, as are authorized, delegated and of the power-of-attorney granted to the Stockholders’ Representative pursuant to this Agreement; Section 2.15, which power-of-attorney, being coupled with an interest, is irrevocable and (iii) exercise shall survive the death, incapacity or incompetence of such rights, power and authority as are incidental Stockholder. Any payment made to the Stockholders’ Representative pursuant to any of the Transaction Documents (other than the Employment Agreements) shall be deemed to have been made to Stockholders. Promptly after receiving any such payment, Stockholders’ Representative shall deliver to each Stockholder his, her or its pro rata portion of such payment. Without limiting the foregoing. Any such actions taken, exercises Stockholders hereby covenant and agree to defend, indemnify and hold harmless the members of rights, power the Parent Indemnified Group from and against any Losses arising out of any claim that the Stockholders’ Representative failed to distribute to Stockholders (or authority, and properly allocate among them) any decision or determination made payments received by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that under the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or Transaction Documents (other than the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonEmployment Agreements).
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, execution of a Note Holder Joinder Agreement, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Indemnifying Party shall be deemed to have approved the designation of, and hereby irrevocably authorizesdesignates, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act Shareholder Representative Services LLC as sole and exclusive representative for such Stockholder the Stockholders’ Representative (the “Stockholders’ Representative”) and authorizes and directs under the terms set forth herein. The Stockholders’ Representative shall act as the representative of the Indemnifying Parties, and shall be authorized to (i) act on behalf of the Indemnifying Parties and to take any and all actions required or permitted to be taken by the Stockholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by an Indemnified Party for indemnification pursuant to this Article IX (including, without limitation, executing the exercise of the power to (i) agree to, negotiate, enter into settlements and delivering compromises of, and comply with orders of courts with respect to any documents, incurring any costs claims for indemnification and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to take all actions necessary in the judgment of the Stockholders’ Representative pursuant for the accomplishment of the foregoing). In all matters relating to this Agreement; and (iii) exercise such rightsArticle IX, power and authority as are incidental the Stockholders’ Representative shall be the only party entitled to assert the foregoing. Any such actions taken, exercises rights of rights, power or authoritythe Indemnifying Parties, and any decision or determination made the Stockholders’ Representative shall perform all of the obligations of the Indemnifying Parties hereunder. The Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Stockholders’ Representative. Each Indemnifying Party hereby agrees to receive correspondence from the Stockholders’ Representative, including in electronic form.
(b) The Indemnifying Parties shall be bound by all actions taken by the Stockholders’ Representative consistent therewithin 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 be absolutely and irrevocably binding on each such Person at all times act in his or her capacity as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination Stockholders’ Representative in such Person’s capacity. Each Stockholder agrees a manner that the Stockholders’ Representative believes to be in the best interest of the Indemnifying Parties. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall 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 case of its gross negligence or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not be liable for have any actions duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement.
(c) Each Indemnifying Party shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such Indemnifying Party’s ratable share of any and all liabilities, losses, damages, claims, suits, actions, causes of action, costs or expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with by the Stockholders’ Representative on all matters relating to under this Agreement, and shall be entitled to rely conclusively (without further evidence in each case as such Representative Loss is incurred; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or willful misconduct of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken the Stockholders’ Representative will reimburse the Indemnifying Parties the amount of such indemnified Representative Loss attributable to such gross negligence or purported willful misconduct. If not paid directly to be taken on behalf of the Stockholders’ Representative by the Indemnifying Parties, any such Person Representative Losses may be recovered by the Stockholders’ Representative from the funds in the Expense Fund; provided that while this Article IX allows the Stockholders’ Representative to be paid from the Expense Fund, this does not relieve the Indemnifying Parties from their obligation to promptly pay such Representative Losses, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise.
(d) If the Stockholders’ Representative shall die, be removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Indemnifying Parties shall (by consent of those persons entitled to at least a majority of the Maximum Company Debt Payment), within 10 days after such death, removal, disability, resignation or inability, appoint a successor to the Stockholders’ Representative and immediately thereafter notify Parent of the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as fully binding upon each such Personthe Stockholders’ Representative 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 the Indemnifying Parties.
Appears in 1 contract
Sources: Merger Agreement (DemandTec, Inc.)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) In order to efficiently administer the transactions contemplated hereby, directs including (i) the determination of the October Working Capital and appoints the Adjusted Merger Consideration, (ii) the determination of the [**] of the Business Unit (as defined in Section 1.11(f)) and the Earn-out Consideration (as defined in Section 1.11(d)), and (iii) the defense and/or settlement of any claims (other than Several Claims (as defined in Section 6.2)) for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, the Company Stockholders, by the approval and adoption of this Agreement, shall designate a committee consisting of ▇▇. ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive their representative for such Stockholder (collectively, the “"Stockholders’ ' Representative”) and authorizes and directs "). The persons constituting the Stockholders’ ' Representative from time to time hereunder (each such person, in such capacity, a "Committee Member") shall make any and all decisions in such capacity, and take or decline to take any action in such capacity, by (and only by) majority consent of such persons.
(b) The Company Stockholders by the approval and adoption of this Agreement authorize the Stockholders' Representative (i) to make all decisions relating to the determination of the October Working Capital adjustment and the Adjusted Merger Consideration, (ii) to make all decisions relating to the determination of the [**] of the Business Unit and the Earn-out Consideration, (iii) to take all actions the Stockholders' Representative may deem necessary or appropriate in connection with the defense and/or settlement of any claims (other than Several Claims) for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, (iv) to give and receive all notices required to be given under this Agreement or that the Stockholders' Representative may deem necessary or appropriate in connection with the transactions contemplated hereby (in each case other than in respect of Several Claims), (v) to take any and all additional actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement as are contemplated to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to or on behalf of the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made Company Stockholders by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power terms of this Agreement or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ ' Representative shall not be liable for any actions taken may deem necessary or omitted to be taken under or appropriate in connection with this Agreement or the transactions contemplated hereby (in each case other than in respect of Several Claims), and (vi) to incur such costs and expenses, including without limitation the fees and expenses of legal, financial, tax, accounting, and other experts and advisors, as the Stockholders' Representative may deem necessary or therebyappropriate in connection with the exercise of the Stockholders' Representative's responsibilities, except authority, and powers hereunder and/or the transactions contemplated hereby, and to recoup such costs and expenses from any amount otherwise payable to the Company Stockholders, including without limitation the Merger Consideration and the Earn-out Consideration.
(c) The initial Committee Members shall be ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. In the event at any time or from time to time any Committee Member becomes unable to perform his or her responsibilities hereunder or resigns from such position, then the persons referred to below are authorized to and shall select another person to fill such vacancy and such substituted person shall thereupon be a Committee Member for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductall purposes of this Agreement and the documents delivered pursuant hereto. The Buyer shall be entitled to deal exclusively conclusively rely on any actions taken by any Committee Member at any time prior to the time the Buyer has received written notice of the removal of such Committee Member.
(d) The persons that immediately prior to the Closing held a majority of the Company Series C Shares then outstanding shall be authorized and entitled to fill any vacancy in the position as a Committee Member of ▇▇▇▇ ▇▇▇▇▇▇▇ or any successor to his position as a Committee Member. The persons that immediately prior to the Closing held a majority of the Company Series A Shares and Series B Shares, collectively, then outstanding shall be authorized and entitled to fill any vacancy in the position as a Committee Member of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or any successor to his position as a Committee Member. The persons that immediately prior to the Closing held a majority of the Company Common Shares then outstanding shall be authorized and entitled to fill any vacancy in the position as a Committee Member of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or any successor to his position as a Committee Member.
(e) All decisions and actions by the Stockholders' Representative made in accordance with the foregoing, including without limitation any agreement between the Stockholders’ ' Representative on all matters and the Buyer relating to this Agreementthe determination of the October Working Capital adjustment and/or the Adjusted Merger Consideration, the determination of the [**] of the Business Unit and/or the Earn-out Consideration, or the defense or settlement of any claims (other than Several Claims) for which the Company Stockholders may be required to indemnify the Buyer and/or the Surviving Corporation pursuant to Article VI 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.
(f) As among the Company Stockholders and the Committee Members, no Committee Member shall be liable for any act done or omitted hereunder in connection with the acceptance, performance, or administration of his duties hereunder except with respect to any fraud or bad faith on the part of such Committee Member, and for this purpose any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of the absence of fraud and bad faith. Each of the Company Stockholders shall severally indemnify each of the Committee Members and hold him harmless against such Company Stockholder's pro rata share (determined in proportion to the portion of the aggregate Merger Consideration and Earn-out Consideration paid to such Company Stockholder hereunder) of any loss, liability, or expense incurred (other than as a direct result of fraud or bad faith on his part) on his part arising out of or in connection with the acceptance, performance, or administration of his duties hereunder.
(g) By his, her or its adoption of this Agreement and approval of the Merger, each Company Stockholder agrees, in addition to the foregoing, that:
(i) the Buyer shall be entitled to rely conclusively (without further evidence on the instructions and decisions of the Stockholders' Representative as to the determination of the October Working Capital adjustment and/or the Adjusted Merger Consideration, the determination of the [**] of the Business Unit and/or the Earn-out Consideration, or the settlement of any kind whatsoeverclaims for indemnification (other than Several Claims) on by the Buyer and/or the Surviving Corporation pursuant to Article VI hereof, or any document executed by other actions required or purported permitted to be executed on behalf of any Stockholder taken by the Stockholders’ Representative' Representative hereunder, and on no party hereunder shall have any other cause of action against the Buyer for any action taken by the Buyer in reliance upon the written instructions or purported decisions of the Stockholders' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative in accordance with this Agreement shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall have any cause of action against any Committee Member for any action taken, decision made or instruction given by such Committee Member or the Stockholders' Representative under this Agreement, except to be taken on behalf the extent of any fraud or bad faith on the part of such Person Committee Member;
(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 transactions contemplated by this Agreement;
(iv) remedies available at law for any breach of the Stockholders’ Representative as fully provisions of this Section 1.10 are inadequate; therefore, the Buyer and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer and/or the Surviving Corporation 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 such PersonCompany 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.
Appears in 1 contract
Sources: Merger Agreement (Vitalworks Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizesDLJMB will serve as the Stockholders’ Representative (in such capacity, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) will take any and all such actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithunder this Agreement and the Escrow Agreement and such other actions on behalf of the Stockholders as DLJMB may deem necessary or appropriate to consummate the transactions contemplated hereby, shall be absolutely including (i) taking all actions and irrevocably binding making all filings on each such behalf of the Stockholders with any Governmental Authority or other Person as if such Person personally had taken such actionnecessary to effect the consummation of the transactions contemplated by any Transaction Agreement, exercised such rights(ii) agreeing to, power negotiating, entering into settlements and compromises of, and complying with orders of courts with respect to any claims under any Transaction Agreement, (iii) subject to Section 11.03, negotiating and executing any waivers or authority amendments of this Agreement and (iv) taking all other actions that are either (A) necessary or made such decision appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or determination in such Person’s capacity(B) contemplated by the terms of any Transaction Agreement. Each Stockholder agrees that the The Stockholders’ Representative shall not be liable to any Holder for any actions taken act done or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the hereunder as Stockholders’ Representative on all matters relating to this Agreement, while acting in good faith and in the exercise of reasonable judgment. Buyer and MergerCo shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action all actions taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personprovided for under this Agreement without any liability to, or obligation to inquire of, any Holder. Buyer and MergerCo shall have no liability for any acts or omissions of the Stockholders’ Representative or otherwise with respect to any claim brought by any Holder against any other Holder or the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Advanstar Inc)
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer (i) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, and (ii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 7 hereof, the Stockholders hereby irrevocably authorizes, directs and appoints designate ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to act as sole and exclusive their representative for such Stockholder (the “"Stockholders’ ' Representative”").
(b) and authorizes and directs The Stockholders hereby authorize the Stockholders’ ' Representative to (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 7 hereof, (ii) to give and receive all notices required to be given under the Agreement, and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Closing, a majority of the Shares as set forth on Schedule 1 attached hereto shall select another representative ---------- to fill such vacancy and such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions (by the Stockholders' Representative, including, without limitation, executing any agreement between the Stockholders' Representative and delivering the Buyer relating to the defense or settlement of any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) claims for which the Stockholders may be required to indemnify the Buyer and/or the Company pursuant to Section 7 hereof, shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or permitted otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree 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 this Agreement the Buyer or the Company pursuant to Section 7 hereof or any other actions required to be taken by such Persons; the Stockholders' Representative hereunder, and no party hereunder 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;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon 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; and , except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) exercise such rightsthe provisions of this Subsection 1.04 are independent and severable, power are irrevocable and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, coupled with an interest and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power enforceable notwithstanding any rights or authority or made such decision or determination in such Person’s capacity. Each remedies that any Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or may have in connection with this Agreement or the transactions contemplated hereby or therebyby this Agreement;
(iv) remedies available at law for any breach of the provisions of this Subsection 1.04 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The the Buyer and the Company shall be entitled to deal exclusively with temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Subsection 1.04; and
(v) the provisions of this Subsection 1.04 shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholders’ Representative on all matters relating ' rights hereunder, whether pursuant to this Agreementtestamentary disposition, the laws of descent and shall be entitled to rely conclusively distribution or otherwise.
(without further evidence of any kind whatsoeverf) on any document executed by or purported to be executed on behalf of any Stockholder All fees and expenses incurred by the Stockholders’ Representative, and on any other action taken or purported to ' Representative shall be taken on behalf of any such Person paid by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesappoints MSDW Capital Partners IV, directs LLC (the "STOCKHOLDERS' REPRESENTATIVE") as its agent and appoints ▇▇attorney-in-fact, with full power, by and in the name of such Stockholder, to execute any and all instruments or other documents on behalf of such Stockholder, and to do any and all other acts or things on behalf of such Stockholder, which the Stockholders' Representative may deem necessary or advisable, or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement and the performance of all obligations hereunder or thereunder at or following the Closing. ▇▇▇▇ ▇▇▇▇▇ to act as sole Without limiting the generality of the foregoing, the Stockholders' Representative shall have the full and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative authority to (i) take 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 agreement of Stockholders, give and all actions (including, without limitation, executing receive notices and delivering any documents, incurring any costs and expenses receive service of process on behalf of such Stockholder all Stockholders, and making act on behalf of Stockholders in connection with any and all determinations) matter as to which Stockholders are or may be obligated under the Merger Agreement or this Agreement, all in the absolute discretion of the Stockholders' Representative; provided that the Stockholders' Representative shall not be required or permitted by this Agreement to be taken by such Personsmake any payments on a behalf of any Stockholder pursuant to Article 4 hereof; (ii) exercise such in general, do all things and perform all acts, including without limitation executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other rightsinstruments or documents contemplated by, power and authority, as are authorized, delegated and granted to or deemed by the Stockholders’ ' Representative pursuant to be necessary or advisable in connection with, the Merger Agreement or this Agreement; and (iii) exercise such rightstake all actions necessary or desirable in connection with the performance of obligations under Article 3 of the Merger Agreement, power including to withhold funds for satisfaction of expenses or other liabilities and authority as are incidental obligations.
(b) Notwithstanding anything to the foregoing. Any such actions takencontrary contained herein, exercises without the prior written consent of rightsthe Stockholders, power the Stockholders' Representative shall not agree to any amendment or authoritymodification of this Agreement, enter into any other contract, agreement, arrangement or understanding or execute any document or instrument, that would: (i) expand the indemnification obligations of the Stockholders under Article 4 of this Agreement; (ii) impose any obligations on the Stockholders not set forth in this Agreement as of the date hereof (other than administrative, technical or procedural matters relating to the performance of this Agreement and the discharge of the Stockholders' obligations hereunder); or (iii) materially alter the economic terms of the Merger as set forth in the Merger Agreement as of the date hereof.
(c) The Stockholders shall cooperate with the Stockholders' Representative and any decision accountants, attorneys or determination made other agents whom it may retain to assist in carrying out its duties hereunder. All decisions by the Stockholders’ ' Representative consistent therewith, shall be absolutely binding upon all Stockholders, and irrevocably binding on each such no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders' Representative may communicate with any Stockholder or any other Person as if such Person personally had taken such actionconcerning its responsibilities hereunder, exercised such rightsbut it is not required to do so. The Stockholders' Representative has a duty to serve in good faith the interests of the Stockholders and to perform its designated role under this Agreement, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that but the Stockholders’ ' Representative shall not be liable for have no fiduciary duty or financial liability whatsoever to any actions Person relating to its service hereunder (including any action taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or therebytaken), except that it shall be liable for such actions taken harm which it directly causes by its gross negligence or omitted to be taken resulting from Stockholders’ Representative’s an act of willful misconduct. The Buyer shall be entitled .
(d) Each Stockholder, severally but not jointly, hereby agrees to deal exclusively with indemnify and hold, to the extent of its Percentage Interest set forth on Schedule I hereto, harmless the Stockholders’ ' Representative on all matters relating to against any out-of-pocket loss, reasonable expense (including reasonable attorney's fees) or other liability arising out of its service as Stockholders' Representative under this Agreement, and other than for harm directly caused by its gross negligence or an act of willful misconduct; provided that no Stockholder shall be entitled required to rely conclusively indemnify the Stockholders' Representative against any loss, expense or liability arising from an action, suit, proceeding or other claim brought by another Stockholder. In furtherance of the foregoing, Parent and the Company shall withhold from the aggregate amount payable to each Stockholder as Merger Consideration or payment in respect of Options pursuant to the Merger Agreement an amount equal to the product of (without further evidence i) $100,000 times (ii) such Stockholder's Percentage Interest. All such amounts so withheld shall be deposited in escrow for the benefit of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder and use by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person ' Representative promptly after the Effective Time with a third-party escrow agent designated by the Stockholders’ ' Representative as fully binding upon each for the purpose of funding indemnification obligations arising pursuant to this Section 5.04(d). Any amounts remaining in such Personescrow account after settlement of all Claims hereunder shall be distributed to the Stockholders in proportion to their respective Percentage Interests.
(e) The Stockholders' Representative may resign at any time by notifying in writing Parent and the Stockholders. The Stockholders' Representative shall not appoint any substitute or replacement Stockholders' Representative without the prior written consent of Stockholders holding a majority of the aggregate Percentage Interests set forth on Schedule I hereto, which consent shall not be unreasonably withheld. The term Stockholders' Representative shall include any substitute appointed pursuant hereto.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) In order to administer efficiently (i) the implementation of the Agreement by the Stockholders, (ii) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, and (iii) the settlement of any dispute with respect to the Agreement, the Stockholders hereby irrevocably authorizes, directs and appoints designate ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Stockholders, the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to Buyer.
(c) In the event that the Stockholders' Representative dies, becomes legally incapacitated or resigns from such position, R. ▇▇▇▇▇ ▇▇▇▇▇ shall fill such vacancy and shall be deemed to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs be the Stockholders’ ' Representative for all purposes of this Agreement; however, no change in the Stockholders' Representative shall be effective until Buyer is given notice of it by the Stockholders.
(d) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) take Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; the Stockholders or the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon 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; and , except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable remedies available at law for any actions taken or omitted to be taken under or in connection with breach of the provisions of this Agreement or the transactions contemplated hereby or therebySection 1.4 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.4; and
(iv) the provisions of this Section 1.4 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Stockholders to the Stockholders’ ' Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively binding upon the executors, heirs, legal representatives and successors of each Stockholder.
(without further evidence of any kind whatsoeverf) on any document executed by or purported to be executed on behalf of any Stockholder All fees and expenses incurred by the Stockholders’ Representative, and on any other action taken or purported to ' Representative shall be taken on behalf of any such Person paid by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) Pursuant to the Stockholders Approval dated on or about the date hereof and the Letters of Transmittal and Option Cancelation Acknowledgement Agreements, directs as applicable, the Equityholders have constituted, appointed and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act empowered effective from and after the date of such consent, Parthenon Investors III, L.P. as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”, for the benefit of the Equityholders and the exclusive agent and attorney-in-fact to act on behalf of each Equityholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and authorizes deliver such waivers, consents and directs amendments under this Agreement and the consummation of the transactions contemplated hereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Equityholders including, consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action or investigation; (B) investigate, defend, contest or litigate any Action or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Equityholders, and receive process on behalf of any or all Equityholders in any such Action or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action or investigation; (C) file any proofs of debt, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to waive or refrain from enforcing any right of the Equityholders arising out of or under or in any manner relating to this Agreement; provided, however, that such waiver is in writing signed by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Equityholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and disburse the Escrow Amount and the Expense Holdback Amount in accordance with the terms of this Agreement. The Equityholders may not make any claim hereunder except through the Stockholders’ Representative.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Equityholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder, (i) the Stockholders’ Representative shall incur no responsibility whatsoever to any Equityholders by reason of any act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Equityholders. Each Equityholder shall indemnify, severally and not jointly, based on such Equityholder’s pro rata share of Merger Consideration received by such Equityholder, the Stockholders’ Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever, arising out of or relating to any acts or omissions of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. The Stockholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Equityholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 8.14(b).
(ic) take All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) Parent and the Surviving Corporation shall have the right to rely upon all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required taken or permitted by this Agreement omitted to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , all of which actions or omissions shall be legally binding upon the Equityholders. Parent, Merger Sub and the Surviving Corporation are hereby relieved from any liability to any Person (including any Equityholder or any Stockholder Indemnified Party) for any acts done by them in accordance with any written notice, consent or instruction of the Stockholders’ Representative.
(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 Equityholder and (iiiii) exercise such rights, power and authority as are incidental to shall survive the foregoing. Any such actions taken, exercises consummation of rights, power or authoritythe Merger, and any decision or determination made action taken by the Stockholders’ Representative consistent therewith, pursuant to the authority granted in this Agreement shall be absolutely effective and irrevocably binding on each Equityholder notwithstanding any contrary action of or direction from such Person as if such Person personally had taken such actionEquityholder, exercised such rights, power except for actions or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that omissions of the Stockholders’ Representative shall not be liable for any actions taken or omitted constituting willful misconduct.
(f) The Stockholders’ Representative has the limited partnership authority to be taken under or in connection with execute and deliver this Agreement or and to perform the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductlimited administrative responsibilities hereunder. The Buyer shall be entitled to deal exclusively with execution, delivery and performance of this Agreement by the Stockholders’ Representative has been duly authorized in accordance with the limited partnership agreement of the Stockholders’ Representative. No other limited partnership action on all matters relating the part of the Stockholders’ Representative is necessary to authorize the execution, delivery and performance of this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder Agreement by the Stockholders’ Representative, . This Agreement has been duly executed and on any other action taken or purported to be taken on behalf of any such Person by delivered the Stockholders’ Representative and, assuming that this Agreement constitutes a valid and binding obligation of the other Parties, constitutes a valid and binding obligation of the Stockholders’ Representative enforceable against the Stockholders’ Representative in accordance with its terms, except for the Enforceability Exceptions.
(g) By the Stockholders’ Representative’s signature to this Agreement, the Stockholders’ Representative hereby accepts the appointment contained in this Agreement, as fully binding upon each such Personconfirmed and extended by this Agreement, and agrees to act as the Stockholders’ Representative and to discharge the duties of the Stockholders’ Representative pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Emdeon Inc.)
Stockholders’ Representative. Each Stockholder Apollo Management, L.P. is hereby irrevocably authorizesconstituted and appointed as representative, directs agent, proxy and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole attorney-in-fact by the Company Securityholders for and on behalf of each of the Company Securityholders for all purposes under this Agreement including the full and exclusive representative for power and authority, on behalf of the Company Securityholders and their successors and permitted assigns, to (a) interpret the terms and provisions of this Agreement; (b) consummate the Merger and the transactions contemplated by this Agreement and execute and deliver all 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 Merger and the transactions contemplated by this Agreement; (c) receive service of process in connection with any claims under this Agreement; (d) take all actions and exercise all rights of the Company Securityholders under Article X and otherwise agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Stockholder (claims, and to take all actions necessary or appropriate in the “Stockholders’ Representative”) and authorizes and directs judgment of the Stockholders’ Representative to for the accomplishment of any of the foregoing; (ie) take any give and all actions receive notices and communications; (includingf) engage counsel, without limitation, executing accountants and delivering any documents, incurring any costs other advisors for the Company Securityholders and incur expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or Company Securityholders in connection with this Agreement and the Merger as the Stockholders’ Representative may deem appropriate; (g) direct the distribution of funds or designate or engage a paying agent to distribute funds (including the Aggregate Merger Consideration, the Contingent Payment, cash and stock held in the Escrow Account and the aggregate amount of any remaining Per Share Representative Holdback Amounts in accordance with this Agreement), (h) 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 Company Securityholders) and (i) take all actions necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of the Company Securityholders in connection with this Agreement (and no Company Securityholder shall have any independent right or legal standing to take any such action or any other action in connection with the Merger or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductby this Agreement). The Buyer shall be Parent is entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement. A decision, act, consent or instruction of the Stockholders’ Representative constitutes a decision of all of the Company Securityholders and shall be final, binding and conclusive upon the Company Securityholders, and Parent shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed decision, action, omission, consent or instruction of the Stockholders’ Representative as being the decision, action, omission, consent or instruction of the Company Securityholders, and Parent is hereby relieved from any liability to any of the Company Securityholders for acts undertaken by Parent in accordance with any such decision, act, consent or purported instruction. Notices or communications to be executed on behalf or from the Stockholders’ Representative shall constitute notice to or from each of any Stockholder by the Company Securityholders. The power and authority of the Stockholders’ Representative, as described in this Agreement, shall continue in force until all rights and obligations of the Company Securityholders, as applicable, under this Agreement shall have terminated, expired or been fully performed. The Stockholders’ Representative may resign at any time by submitting a written resignation to Parent. If Apollo Management, L.P. resigns or otherwise ceases to serve as the Stockholders’ Representative, a successor Stockholders’ Representative shall be elected by a majority vote of the Company Securityholders, with each such Company Securityholder (or its successor or assign) to be given a vote equal to the voting shares of Company Common Stock owned by such Company Securityholder immediately before the Merger. The Company Securityholders shall cause to be delivered to Parent prompt written notice of such election of a successor Stockholders’ Representative, such appointment to become effective upon the later of the date indicated in such consent or the date such consent is delivered to Parent; provided, that prior to such effective time, Parent shall remain entitled to rely on any other action taken decision, action, omission, consent or purported instruction of the Stockholders’ Representative as being the decision, action, omission, consent or instruction of the Company Securityholders, and Parent is hereby relieved from any liability to any of the Company Securityholders for acts undertaken by Parent in accordance with any such decision, act, consent or instruction. Neither the Stockholders’ Representative nor any of its members, managers, partners, officers, agents, representatives or any of their respective Affiliates shall incur any liability to any Company Securityholder 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 bad faith or willful misconduct. The Stockholders’ Representative and its members, managers, partners, officers, agents, representatives and their respective Affiliates shall have no liability in respect of any Action brought against such Persons by any Company Securityholder, regardless of the legal theory under which such liability or obligation may be sought to be taken on behalf 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. The Stockholders’ Representative shall have the right, in its sole discretion, to recover from any such Person amounts withheld by the Stockholders’ Representative for such purpose, its out-of-pocket expenses incurred in the performance of its duties hereunder. Each successor Stockholders’ Representative shall have all the power, authority, rights and privileges conferred by this Agreement upon the original Stockholders’ Representative, and the term “Stockholders’ Representative” as fully binding upon each used herein shall be deemed to include any successor Stockholders’ Representative. Any successor Stockholders’ Representative shall indicate in writing its acceptance of such Personappointment and its agreement to be bound by the terms of this Agreement. The adoption of this Agreement and the approval of the principal terms of the Merger by the Company Stockholders shall constitute approval of the appointment of the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Norwegian Cruise Line Holdings Ltd.)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (i) ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, the Stockholder Representative, is hereby appointed as representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of each Stockholder to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the terms of this Agreement, and to act on behalf of each Stockholder in any amendment of or litigation or arbitration involving this Agreement or any Ancillary Agreements and to do or refrain from doing all such further acts and things, and to execute all such documents, as sole and exclusive representative for such Stockholder (Representative shall deem necessary or appropriate in conjunction with any of the “Stockholders’ Representative”) and authorizes and directs transactions contemplated by this Agreement, including the Stockholders’ Representative to 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 (including, without limitation, executing and delivering or refrain from doing any documents, incurring any costs and expenses further act or deed on behalf of such the Stockholders which the Stockholder and making any and all determinations) which may be required Representative deems necessary or permitted by appropriate in his sole discretion relating to the subject matter of this Agreement to be taken by such Persons; as fully and completely as a Company Stockholder could do if personally present.
(iij) exercise such other rights, power and authority, as are authorized, delegated and Notwithstanding the enumerated powers granted to the Stockholders’ Stockholder Representative in Section 9.1(a) above, the Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders to consummate the transactions set forth in Section 5.3(f);
(k) If the Stockholder Representative becomes unable to serve as Stockholder Representative, such other Person or Persons as may be designated by him who shall be one of the Stockholders holding the majority of the Purchaser Common Stock, shall succeed as the Stockholder Representative.
(l) The Stockholder Representative shall not be held liable by any of the Stockholders for actions or omissions in exercising or failing to exercise all or any of the power and authority of the Stockholder Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental except in the case of the Stockholder Representative's gross negligence, bad faith or willful misconduct. The Stockholder Representative shall be entitled to rely on the foregoing. Any such actions takenadvice of counsel, exercises of rights, power public accountants or authorityother independent experts that it reasonably determines to be experienced in the matter at issue, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall will not be liable to any Stockholder for any actions action taken or omitted to be taken under or in connection good faith based on such advice. The Stockholders will, severally and not jointly, indemnify (in accordance with this Agreement or their pro rata percentages) the transactions contemplated hereby or therebyStockholder Representative from any losses arising out of its serving as the Stockholder Representative hereunder, except for such actions taken losses arising out of or omitted to be taken resulting from Stockholders’ caused by the Stockholder Representative’s 's gross negligence, bad faith or willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Stockholder Representative on all matters relating to this Agreementis serving in his capacity as such solely for purposes of administrative convenience, and shall be entitled 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 rely conclusively (without further evidence the personal assets of the Stockholder Representative, acting in such capacity, for the satisfaction of any kind whatsoever) on any document executed by or purported obligations to be executed on behalf of any Stockholder performed by the Stockholders’ Stockholders hereunder except to the extent of the Stockholder Representative's gross negligence, and on any other action taken bad faith or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personwillful misconduct.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the The Stockholders’ Representative to represents and warrants that (i) take any and all actions (including, without limitation, he is executing and delivering any documents, incurring any costs and expenses this Amendment as Stockholders’ Representative on behalf of such Stockholder and making any himself and all determinationsother Former Holders pursuant to Section 8.1 of the Merger Agreement, the written agreement between him and the other Former Holders contemplated by Section 8.1(e) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authorityof the Merger Agreement, as are authorizedheretofore amended or supplemented, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and well as any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees other written agreement that the Stockholders’ Representative shall not be liable for may have with any actions taken or omitted to be taken under or in connection with this Agreement or all of the transactions contemplated hereby or therebyother Former Holders (collectively, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the “Former Holder Agreements”), and (ii) the Stockholders’ Representative on has taken any and all matters relating actions and receive any and all approvals needed from the Former Holders, pursuant to the Former Holder Agreements or otherwise, which required actions and approvals are described in Exhibit A to this AgreementAmendment, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by that the Stockholders’ Representative as is fully authorized to execute this Amendment on behalf of the Former Holders and it is valid, binding upon each such Personand enforceable against the Former Holders in accordance with its terms. CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SUCH OMITTED PORTIONS, WHICH ARE MARKED WITH BRACKETS [ ] AND AN ASTERISK*, HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Acorda Therapeutics Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇(a) E▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to act as sole (such person and exclusive representative for such Stockholder (any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the Company Holders, and authorizes shall be authorized to act on behalf of the Company Holders and directs the Stockholders’ Representative to (i) take any and all actions required or permitted to be taken by the Stockholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnitee or a Company Holder Indemnitee (as the case may be) for indemnification pursuant to Article VIII (including, without limitation, executing the exercise of the power to (i) authorize the delivery of payments from the Holdback amount to a Parent Indemnitee in satisfaction of claims by a Parent Indemnitee, (ii) agree to, negotiate, enter into settlements and delivering compromises of, and comply with orders of courts with respect to any documentsclaims for indemnification and (iii) take all actions necessary in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing). In all matters relating to Article VIII, incurring the Stockholders’ Representative shall be the only party entitled to assert the rights of the Company Holders, and the Stockholders’ Representative shall perform all of the obligations of the Company Holders hereunder. The Parent Indemnitees shall be entitled to rely on all statements, representations, and decisions of the Stockholders’ Representative.
(b) The Company Holders shall be bound by all actions taken by the Stockholders’ Representative in his, her or its capacity thereof, except for any costs action that conflicts with the limitations set forth in subsection (d) below. The Stockholders’ Representative shall promptly, and expenses in any event within five (5) business days, provide written notice to the Company Holders of any action taken on behalf of such Stockholder and making any and all determinations) which may be required or permitted them by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to the authority delegated to the Stockholders’ Representative under this Section 10.13. The Stockholders’ Representative shall at all times act in his, her or its capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to be in the best interest of the Company Holders. 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; , 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 (iii) exercise such rights, power and authority other experts selected by it. The Stockholders’ Representative shall not have any duty to ascertain or to inquire as are incidental to the foregoing. Any performance or observance of any of the terms, covenants, or conditions of this Agreement.
(c) Each Company Holder shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such actions takenCompany Holder’s ratable share of any and all liabilities, exercises of rightslosses, power damages, claims, costs or authority, and any decision expenses suffered or determination made incurred by the Stockholders’ Representative consistent therewitharising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Stockholders’ Representative’s gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary herein, the Stockholders’ Representative is not authorized to, and shall be absolutely not, accept on behalf of any Company Holder any Merger Consideration to which such Company Holder is entitled under this Agreement and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for in any actions taken manner exercise, or omitted seek to be taken under exercise, any voting power whatsoever with respect to shares of capital stock of the Company or in connection with this Agreement Parent now or the transactions contemplated hereby hereafter owned of record or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with beneficially by any Company Holder unless the Stockholders’ Representative on all matters relating is expressly authorized to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed do so in a writing signed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonCompany Holder.
Appears in 1 contract
Sources: Merger Agreement (VNUE, Inc.)
Stockholders’ Representative. Each (a) By the execution and delivery of this Agreement, each Stockholder hereby shall be deemed to have irrevocably authorizesappointed, directs authorized and appoints directed W▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole such Stockholder’s agent, representative, proxy and exclusive representative attorney-in-fact for such Stockholder (the “purpose of effecting the consummation of the transactions contemplated by this Agreement and the Transaction Documents, and exercising, on behalf of all Stockholders’ Representative”) , the rights and authorizes powers of the Stockholders hereunder and directs thereunder. Without limiting the generality of the foregoing, the Stockholders’ Representative to (i) take any shall have full power and all actions (includingauthority, without limitationand is hereby directed, executing for and delivering any documents, incurring any costs and expenses on behalf of the Stockholders, to take such Stockholder action, and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant hereunder in connection with the transactions contemplated hereby and thereby and to this Agreement; and (iii) exercise such rights, power and authority as are incidental thereto, to represent any Stockholder at the Closing, to give or receive any notices required or permitted to be given hereunder and thereunder, to accept service of process on behalf of any Stockholder, to execute and deliver, or hold in escrow and release, any exhibits or amendments to this Agreement, the Transaction Documents or any other agreements, certificates, stock powers, statements, notices, approvals, extensions or waivers relating to the foregoing. Any transactions contemplated hereby or thereby, to conduct or cease to conduct the defense of all claims against any Stockholder in connection with this Agreement and to settle all such actions taken, exercises claims on behalf of rights, power all Stockholders and exercise any and all rights that the Stockholders are permitted or authorityrequired to do or exercise under Article X, and in connection with any decision claim against or determination made by theStockholders under this Agreement. The appointment and agency created hereby is irrevocable, and shall be deemed to be coupled with an interest. Execution of this Agreement by the Stockholders shall constitute agreement to be bound by the actions of the Stockholders’ Representative consistent therewithtaken hereunder and thereunder. The parties hereto acknowledge and agree that, as to all matters arising under this Agreement and the Transaction Documents, the Stockholders’ Representative shall act for and on behalf of the Stockholders. When this Agreement or any Transaction Document provides that a determination or any other action or event is conclusive and binding upon theStockholders, such determination, action or event of the Stockholders’ Representative shall be absolutely conclusive and irrevocably binding on each upon the Stockholders. In addition, the Stockholder’s Representative shall have all such incidental powers as may be necessary or desirable to carry into effect the provisions of this Section 11.15, including, at the expense of the Stockholders, to retain attorneys, accountants and other advisors to assist him in the performance of his duties hereunder.
(b) Subject to the provisions of this Section 11.15(b), the Stockholders’ Representative shall serve as such from the date hereof until the earlier of his removal or the completion of his obligations hereunder. In the event that the Person who is acting as if such Person personally had taken such actionthe Stockholders’ Representative is terminated by the Stockholder (which termination shall require the unanimous vote of the Stockholder) or is unable or unwilling to continue to serve as the Stockholders’ Representative, exercised such rightsor otherwise ceases to be the Stockholders’ Representative, power or authority or made such decision or determination his successor shall be appointed in such Person’s capacity. Each Stockholder agrees accordance with this Section 11.15; provided, however, that the Stockholders’ Representative shall not voluntarily resign without the Stockholders first selecting a successor Stockholders’ Representative (reasonably satisfactory to Buyer) in accordance with this Section 11.15. Upon the termination or resignation of any Stockholders’ Representative, a successor Stockholders’ Representative (and, if necessary, further successor Stockholders’ Representatives) shall be liable appointed by the Stockholders’ Representative or in the event of his death, the executor of his estate. Any successor to a Stockholders’ Seller Representative shall for purposes of this Agreement be deemed to be, for the time of the appointment thereof, a Stockholders’ Representative and from and after such time, the term “Stockholders’ Representative” as used herein shall be deemed to refer to any actions taken or omitted successor. No appointment of a successor shall be effective unless such successor agrees in writing to be taken bound by the terms of this Agreement.
(c) The Stockholders agree that the provisions set forth in this Section 11.15 shall in no way impose any liability or obligation on Buyer other than those explicitly set forth in this Agreement. In particular, notwithstanding in any case any notice received by Buyer to the contrary, Buyer shall be fully protected in relying upon and shall be entitled (i) to rely upon actions, decisions and determinations of the Stockholders’ Representative and (ii) to assume that all actions, decisions and determinations of the Stockholders’ Representative are fully authorized and binding upon the Stockholders’ Representative and the Stockholders.
(d) Each Stockholder further agrees that the Stockholders’ Representative (i) shall not incur any liability to any Stockholder for acting or omitting from acting in such capacity if in doing so he acts or omits to act upon advice of counsel or otherwise acts or omits to act in good faith, (ii) shall not incur any liability for acting or omitting from acting in such capacity in the absence of his gross negligence or willful misconduct and (iii) may act or omit to act upon any instrument or signature believed by him to be genuine and may assume that any Person purporting to give any notice or instruction under or in connection with this Agreement or the transactions contemplated hereby any Transaction Document or thereby, except for such actions taken or omitted document believed by him to be taken resulting from authorized has been authorized to do so.
(e) The Stockholders’ Representative shall act without any compensation. Notwithstanding the foregoing, each Stockholder hereby unconditionally and irrevocably agrees to pay to the Stockholders’ Representative, promptly upon request and in any event within 10 days of such request, such Stockholder’s prorata share (based, if applicable, on such Stockholder’s relative ownership of the Shares) of any amounts paid, or in the Stockholders’ Representative’s willful misconduct. The Buyer shall reasonable judgment expected to be entitled to deal exclusively with paid, by the Stockholders’ Representative on all matters relating behalf of the Stockholders and agrees to this Agreement, and shall be entitled to rely conclusively (without further evidence pay such prorata share of any kind whatsoeverand all costs and expenses (including legal fees and expenses) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person incurred by the Stockholders’ Representative as fully binding upon on behalf of the Stockholders in connection with the protection, defense, expense or enforcement of any rights under this Agreement or any Transaction Document.
(f) It is understood and agreed that, notwithstanding anything to the contrary contained in this Section 11.15: (i) each Stockholder (and not the Stockholders’ Representative) shall sign the certificate contemplated by Section 7.1 and any exhibit to this Agreement that calls for the signature of such PersonStockholder; and (ii) this Section 11.15 shall in no event apply to the Employment Agreement, the written instructions referred to in Section 1.1(b)(i) or any New Lease.
Appears in 1 contract
Stockholders’ Representative. Each (a) By the execution and delivery of this Agreement, including counterparts hereof, each Stockholder hereby irrevocably authorizes, directs constitutes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇, and in his absence ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as the true and lawful agent and attorney-in-fact of such Stockholder with full powers of substitution (and, if substituted, the Stockholders' Representative will promptly notify Parent of such substitution) to act as sole in the name, place and exclusive representative for stead of such Stockholder with respect to this Agreement and the Escrow Agreement (together with any permitted successors, the “"Stockholders’ ' Representative”) "), as each of them may be from time to time amended, with respect to the transfer of such Target Common Stock to the Parent pursuant hereto, and authorizes to do or refrain from doing all such acts and directs things, and to execute all such documents, as the Stockholders’ ' Representative to (i) take shall deem necessary or appropriate in connection with this Agreement, the Escrow Agreement or any and all actions (of the transactions contemplated hereby or thereby, including, without limitation, executing the power:
(i) to receive, hold, and delivering deliver to the Parent the certificates evidencing the Target Common Stock accompanied by executed stock powers and any documents, incurring any costs and expenses other documents relating thereto on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; Stockholder;
(ii) exercise such to execute and deliver the Escrow Agreement and all other rightsagreements, power documents and authority, as are authorized, delegated and granted to other papers which the Stockholders’ ' Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power deems necessary or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or appropriate in connection with this Agreement or the Escrow Agreement or any of the transactions contemplated hereby or thereby;
(iii) to receive, except execute a receipt for, and receipt for the Merger Consideration and other compensation for the Target Common Stock;
(iv) to terminate, amend, or waive any provision of this Agreement;
(v) to act for such Stockholder with regard to all indemnification matters referred to in this Agreement, including, without limitation, the power to compromise any claim on behalf of such Stockholder; and
(vi) to do or refrain from doing any further act or deed on behalf of such Stockholder which the Stockholders' Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as such Stockholder could do if personally present.
(b) The appointment of the Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable and the Parent and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Stockholders' Representative, as the act of the Stockholders in all matters referred to in this Agreement and the Escrow Agreement. Each of the Stockholders hereby ratifies and confirms all that its said Stockholders' Representative shall do or cause to be done by virtue of its appointment as representative of such Stockholder. The Stockholders' Representative shall act for the Stockholders on all of the matters set forth in this Agreement and the Escrow Agreement in the manner the Stockholders' Representative believes to be in the best interest of the Stockholders and consistent with their obligations under this Agreement and the Escrow Agreement, but the Stockholders' Representative shall not be responsible to any Stockholder for any loss or damage any Stockholder may suffer by reason of the performance of the Stockholders' Representative of its duties under this Agreement and the Escrow Agreement or with respect to any other matter under this Agreement and the Escrow Agreement, except, in the case of the Stockholders' Representative, for loss or damage arising from the Stockholders' Representative's willful violation of law or gross negligence in the performance of its duties hereunder. Each Stockholder has delivered to the Stockholders' Representative its certificates representing the Target Common Stock and all other documents and instruments required to be delivered by them to the Parent at the Closing or which the Stockholders' Representative otherwise deems necessary or desirable in connection with the transactions contemplated by this Agreement and the Escrow Agreement. Each Stockholder shall deliver to the Stockholders' Representative for payment to the Parent upon three (3) business days prior written notice any amount owing by such Stockholder to the Parent under this Agreement and the Escrow Agreement; but nothing herein shall be construed as holding the Stockholders' Representative liable to the Parent for any amount which any such Stockholder does not deliver to the Stockholders' Representative and which the Stockholders' Representative is not otherwise liable for hereunder.
(c) Each Stockholder shall, ratably in accordance with its, his or her pro rata portion of the Merger Consideration, indemnify the Stockholders' Representative against any Damages (except such as result from the Stockholders' Representative's willful violation of law or gross negligence in its performance of its duties hereunder) that the Stockholders' Representative may suffer or incur in connection with this Agreement and the Escrow Agreement or any action taken or omitted to be taken resulting from by the Stockholders’ Representative’s willful misconduct. ' Representative hereunder.
(d) The Buyer shall be entitled to deal exclusively Stockholders agree that the Parent may rely on the relevant provisions of this Section 12.16 in dealing 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 by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative.
(e) The Parent may, for all purposes of this Agreement and on any the Escrow Agreement, assume and treat every notice, payment or other action taken or purported directed to be taken on behalf of any such Person by the Stockholders’ ' Representative as fully binding upon if such notice, payment or other action had been directed to each Stockholder and, if a payment, as if it had been paid directly to such PersonStockholder in the correct amount based on such Stockholder's share ownership shown on Annex I attached hereto.
Appears in 1 contract
Sources: Merger Agreement (24/7 Media Inc)
Stockholders’ Representative. Each Stockholder (a) Stockholders’ Representative is hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ appointed to act as the sole representative, agent and exclusive representative attorney-in-fact for the Rolling Stockholders and their transferees, successors and assigns for all purposes of this Agreement and the Merger Agreement, except as expressly provided herein.
(b) Stockholders’ Representative shall have the power and authority to take such actions on behalf of each Rolling Stockholder (the “as Stockholders’ Representative”, in its sole judgment, may deem to be in the best interests of the Rolling Stockholders or otherwise appropriate on all matters related to or arising from this Agreement. Such powers shall include:
(i) executing and authorizes delivering any and directs all supplements, amendments, waivers or modifications thereto and all certificates, consents, waivers and other documents contemplated by this Agreement or the Merger Agreement, or as may be necessary or appropriate to effect the Rollover Closing and the other transactions contemplated by this Agreement or the Merger Agreement;
(ii) giving and receiving notices and other communications relating to this Agreement or the Merger Agreement;
(iii) taking or refraining from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of this Agreement or the Merger Agreement and the enforcement of the obligations and rights pursuant to this Agreement or the Merger Agreement, including all actions necessary or appropriate in connection with any Action;
(iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of Stockholders’ Representative to and at the Rolling Stockholders’ cost, in the performance of its duties under this Agreement or the Merger Agreement;
(iv) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be the Rolling Stockholders as set forth in, or as required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted give effect to the obligations of the Rolling Stockholders as set forth in, Section 5.01; and
(vi) taking all actions necessary or appropriate in the judgment of Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to for the accomplishment of the foregoing. Any such actions taken, exercises .
(c) The power of rights, power or authority, and any decision or determination made by the attorney granted herein appointing Stockholders’ Representative consistent therewithas attorney-in-fact is coupled with an interest and the death or incapacity of any Rolling Stockholder shall not terminate or diminish the authority and agency of Stockholders’ Representative. Should Stockholders’ Representative be unable or unwilling to serve, a replacement Stockholders’ Representative shall be absolutely designated and irrevocably binding on each appointed by Crestview Partners III GP, L.P. (or its representatives, successors or assigns). The decisions and actions of any such Person replacement Stockholders’ Representative shall be, for all purposes, those of Stockholders’ Representative as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the originally named herein.
(d) Stockholders’ Representative shall not be liable to the Rolling Stockholders for any act done or omitted as Stockholders’ Representative, except to the extent that Stockholders’ Representative was grossly negligent or engaged in willful misconduct. Stockholders’ Representative shall not be compensated for acting in its capacity as Stockholders’ Representative. All fees and expenses of attorneys, accountants and other professionals necessary or appropriate and engaged by Stockholders’ Representative in the performance of their duties under this Agreement shall be paid directly by the Rolling Stockholders, in each case, pro rata in accordance with its ownership percentage of the aggregate Rollover Shares.
(e) The Rolling Stockholders shall, severally but not jointly, indemnify, defend and hold harmless Stockholders’ Representative and its heirs, representatives, successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) arising as a result of or incurred in connection with any actions taken or omitted to be taken under by Stockholders’ Representative pursuant to the terms of this Agreement, except to the extent it is finally determined that Stockholders’ Representative was grossly negligent or engaged in willful misconduct. In addition, each Rolling Stockholder forever voluntarily releases and discharges Stockholders’ Representative, its heirs, representatives, successors and assigns, from any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs), whether known or unknown, anticipated or unanticipated, arising as a result of or incurred in connection with this Agreement or the transactions contemplated hereby or thereby, except for such any actions taken or omitted to be taken resulting by Stockholders’ Representative pursuant to the terms of this Agreement, except to the extent it is finally determined that Stockholders’ Representative was grossly negligent or engaged in willful misconduct. Expenses (including attorneys’ fees and court costs) incurred by Stockholders’ Representative in defending any Action shall be paid by the Rolling Stockholders in advance of the final disposition of such Action upon receipt of an undertaking from Stockholders’ Representative’s willful misconduct. The Buyer Representative to repay such amount if it shall ultimately be entitled to deal exclusively with the determined that Stockholders’ Representative on all matters relating is not entitled to be indemnified by the Rolling Stockholders pursuant to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonSection 2.05(e).
Appears in 1 contract
Sources: Voting, Support and Rollover Agreement (WideOpenWest, Inc.)
Stockholders’ Representative. 6.01 Authorization of the Stockholders’ Representative; Inability to Perform.
(a) Each Securityholder, by executing and delivering an Option Surrender Agreement, Exchange Agreement, Letter of Transmittal, joinder agreement and/or the Stockholder hereby irrevocably authorizesWritten Consent, directs as applicable, approving and adopting this Agreement, makes, constitutes and appoints the Stockholders’ Representative such Person’s true, lawful and exclusive attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver, or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Stockholders’ Representative provided for in this Section 6.01. The grant of authority provided for in this Section 6.01 is coupled with an interest and is being granted, in part, as an inducement to the parties hereto to enter into this Agreement and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Securityholder and shall be binding on any successor thereto.
(b) By virtue of the adoption of this Agreement and the approval of the Transactions by the Securityholders, each Securityholder shall be deemed to have agreed to appoint the Stockholders’ Representative as its agent and attorney-in-fact for and on behalf of the Securityholders in connection with, and to facilitate the consummation of the Transactions, and in connection with the activities to be performed on behalf of the Securityholders under this Agreement and the other documents contemplated hereby, for the purposes and with the powers and authority hereinafter set forth in this ARTICLE VI, which shall include the full and exclusive power and authority:
(i) to take such actions and to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement and the other documents contemplated hereby and the consummation of the Transactions as the Stockholders’ Representative, in its reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement and the other documents contemplated hereby;
(ii) to pay expenses of the Securityholders incurred in connection with the negotiation and performance of this Agreement and the other documents contemplated hereby (whether incurred before, on or after the date of this Agreement);
(iii) to receive any amounts due to the Securityholders under this Agreement or under the other documents contemplated hereby, and to disburse any such funds to the Securityholders;
(iv) to retain the Representative Expense Amount until it is liquidated in accordance with Section 6.02(b), and to use the funds constituting the Representative Expense Amount to satisfy the expenses of the Stockholders’ Representative in performing its duties hereunder and to satisfy expenses and obligations of the Securityholders; provided, however, that if the Representative Expense Amount is exhausted or otherwise disbursed and the Stockholders’ Representative requires additional funds to satisfy the expenses of the Stockholders’ Representative in performing its duties hereunder or to satisfy expenses and obligations of the Securityholders, the Stockholders’ Representative may request, and the Securityholders shall provide, such additional funds, based on each Securityholders’ Pro-Rata Share, to the Stockholders’ Representative for such purposes;
(v) as the agent of the Securityholders, to enforce and protect the rights and interests of the Securityholders and to enforce and protect the rights and interests of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement and the other documents contemplated hereby and, in connection therewith, to: (A) employ such agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the Securityholders in connection with ARTICLE I and otherwise under this Agreement as the Stockholders’ Representative, in its reasonable discretion, deems to be in the best interest of the Securityholders; (B) assert or institute any Action; (C) investigate, defend, contest or litigate any Action initiated by Purchaser or the Surviving Company, or any other Person, against the Stockholders’ Representative, and receive process on behalf of any or all Securityholders in any such Action and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of the Securityholders with respect to any such Action; (D) file any proofs, debts, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (E) settle or compromise any claims asserted under ARTICLE I or otherwise under this Agreement; (F) assume, on behalf of all of the Securityholders, the defense of any claim that is the basis of any claim asserted under ARTICLE I or otherwise under this Agreement; (G) finally determine the amounts set forth on the Estimated Closing Statement and; and (H) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims or Actions, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take any such action;
(vi) to enforce payment of any other amounts payable to the Securityholders, in each case on behalf of the Securityholders, in the name of the Stockholders’ Representative;
(vii) to waive or refrain from enforcing any right of the Securityholders or any of them and/or of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement or the other documents contemplated hereby; and
(viii) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, elections, 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 direction, may consider necessary or proper or convenient in connection with or to carry out the activities described in paragraphs (i) through (vii) above and the Transactions. 47
(c) All decisions and actions by the Stockholders’ Representative (to the extent authorized by this Agreement) shall be binding upon all of the Securityholders and no Securityholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) In the event the Stockholders’ Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Stockholders (acting by the vote of the Stockholders who immediately prior to the Effective Time held at least a majority of the outstanding Common Shares held by all Stockholders) shall promptly select another representative reasonably acceptable to Purchaser to fill any vacancy of the Stockholders’ Representative, and such substituted representative shall be deemed to be a Stockholders’ Representative for all purposes under this Agreement and the other documents contemplated hereby.
(e) Purchaser and the Surviving Company shall be entitled to rely exclusively upon the communications of the Stockholders’ Representative relating to the foregoing as the communications of the Securityholders. None of Purchaser or the Surviving Company shall be held liable or accountable in any manner for any act or omission of the Stockholders’ Representative in such capacity.
(f) Purchaser and the Surviving Company shall be entitled to unconditionally assume that any action taken or omitted, or any document executed by, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P., purporting to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative under or pursuant to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement or the other documents contemplated hereby or in connection with any of the Transactions has been unconditionally authorized by Securityholders to be taken by such Persons; (ii) exercise such taken, omitted to be taken, or executed on their behalf so that they will be legally bound thereby, and no Securityholder shall institute any claim, lawsuit, arbitration or other rightsAction against Purchaser, power and authorityMerger Sub, the Surviving Company or any of their respective Representatives alleging that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P. did not have the authority to act as are authorized, delegated and granted to the Stockholders’ Representative pursuant on behalf of Securityholders in connection with any such action, omission or execution. No modification or revocation of the power of attorney granted by the Securityholders herein to this Agreement; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P. to serve as the Stockholders’ Representative shall be effective as against Purchaser until Purchaser has received a document signed by all Securityholders effecting said modification or revocation and (iii) exercise such rightsselecting another representative to fill the vacancy of the Stockholders’ Representative. Purchaser, power Merger Sub, the Surviving Company and authority as their respective Representatives are incidental hereby relieved from any liability to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made Person for any acts done by the Stockholders’ Representative consistent therewithand any acts done by Purchaser, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement Merger Sub or the transactions contemplated hereby Surviving Company in accordance with any decision, act, consent or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence instruction of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints ▇▇. ▇▇by signing this Agreement, designates Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (▇▇, in the event that Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to act as sole and exclusive serve, Gary ▇▇▇▇▇▇) ▇▇ be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other 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) Notwithstanding the foregoing, the Stockholder Representative shall inform each Stockholder of all notices received, and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsactions, power decisions, notices and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ Stockholder Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder act as directed by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Stockholders holding a majority interest in the Stockholders’ Representative Escrow Property (as fully binding upon each such Persondefined in Section 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each Stockholder (a) The Stockholders hereby irrevocably authorizesnominate, directs constitute and appoints ▇▇. appoint an individual to be designated by ▇▇▇▇ ▇▇▇▇▇ to act Capital Venture Fund 2005, L.P. as sole and exclusive the representative for such Stockholder of the Escrow Fund Participants (the “Stockholders’ RepresentativeRepresentatives”), with full power of substitution, with the full right power and authority to act on their behalf under this Agreement and the Escrow Agreement, to serve as their lawfully designated attorney-in-fact (which shall include, without limitation, the right, power and authority to contractually obligate, execute, deliver, acknowledge, certify, file and record on behalf of the Escrow Fund Participants (in the name of any or all of the Escrow Fund Participants or otherwise) any and authorizes and directs all documents deemed necessary, appropriate or advisable by the Stockholders’ Representative in the Stockholders’ Representative’s sole discretion, including any amendment to (i) take or waiver of rights or provisions under or in this Agreement, the Escrow Agreement, or any other documents executed in connection with this Agreement, the Escrow Agreement, or otherwise), to give and all actions receive notices and communications under this Agreement for the Escrow Fund Participants (including, without limitation, executing with respect to claims by Parent and delivering the Parent Damaged Parties), to object to any documentsnotices received hereunder, incurring any costs to agree to, negotiate, enter into settlements and expenses on behalf compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such Stockholder claims, and making to take any and all determinations) which may be required other actions of any kind or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsnature whatsoever deemed necessary, power appropriate, or advisable in the sole discretion and authority, as are authorized, delegated and granted to judgment of the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to for the accomplishment of the foregoing. Any such actions taken, exercises No bond shall be required of rights, power or authoritythe Stockholders’ Representative, and any decision or determination made by the Stockholders’ Representative consistent therewithshall receive no compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each Escrow Fund Participant. ▇▇▇▇ Capital Investors, shall be absolutely and irrevocably binding on each such Person LLC hereby designates J. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the initial Stockholders’ Representative.
(b) The Stockholders’ Representative shall not be liable to the Escrow Fund Participants for any actions taken act done or omitted as Stockholders’ Representative, except in the case of bad faith or willful misconduct, and any act done or omitted pursuant to the advice of counsel shall be taken under conclusive evidence of the absence of bad faith or willful misconduct. The Escrow Fund Participants shall severally indemnify, defend and hold harmless the Stockholders’ Representative (together with any of its Affiliates and any of their respective heirs, successors, assigns, partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or controlling persons) against any loss, liability or expense incurred and arising out of or in connection with this Agreement the acceptance or administration of the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s duties hereunder, other than as a result of fraud or willful misconduct. The Buyer shall be entitled to deal exclusively with misconduct by the Stockholders’ Representative (or any such persons). The Stockholders’ Representative may be removed or replaced, and his successor designated and appointed, at any time for any reason or for no reason with the written consent of the Requisite Stockholders; provided, however, that such removal or replacement shall not be effective until Parent and the Escrow Agent have been notified in writing by the Requisite Stockholders which notice shall identify the replacement Stockholders’ Representative.
(c) The Stockholders’ Representative shall have and be granted reasonable access to information about the Company post-Closing and the reasonable assistance of the Company’s officers, agents, and representatives post-Closing for purposes of performing the Stockholders’ Representative’s duties and exercising the Stockholders’ Representative’s rights hereunder, provided, however, that the Stockholders’ Representative shall treat confidentially and not disclose any confidential information from or about the Company to any person, except (i) on all matters relating a need to know basis to individuals who agree to treat such information confidentially or (ii) as required by any applicable law, regulation or order of a court or other binding legal process. The Stockholders’ Representative will not be entitled to receive any compensation from Parent, Merger Sub or the Company in connection with this Agreement. Any fees and expenses incurred by the Stockholders’ Representative in connection with actions taken pursuant to the terms of this Agreement will be paid by the Stockholders severally to the Stockholders’ Representative and Parent, Merger Sub and the Company shall have no obligation with respect to the payment of any such fees and expenses.
(d) A decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all of the Escrow Fund Participants and shall be entitled final, binding and conclusive upon each of the Escrow Fund Participants. Parent may rely upon any decision, act, consent, or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Escrow Fund Participant. Parent and the Surviving Corporation are hereby relieved from any liability to rely conclusively any person for any acts done by Parent or the Surviving Corporation or any of their agents, representatives, or Affiliates in accordance with any decision, act, failure to act, consent, waiver, amendment, approval or instruction of the Stockholders’ Representative. The Escrow Fund Participants shall not bring any action or claim against any Parent Damaged Party with respect to any action or inaction by the Stockholders’ Representative.
(without further evidence e) The Escrow Fund Participants hereby agree, acknowledge, recognize and intend that the power of any kind whatsoeverattorney granted in Section 6.9(a), above: (i) on any document executed by or purported to is coupled with an interest, (ii) may be executed on behalf of any Stockholder delegated by the Stockholders’ Representative, and on any other action taken (iii) shall survive the death or purported to be taken on behalf incapacity of any such Person by the Stockholders’ Representative as fully binding upon each such PersonEscrow Fund Participant.
Appears in 1 contract
Sources: Merger Agreement (Compuware Corp)
Stockholders’ Representative. Each Stockholder (a) The Key Stockholders (by virtue of their execution of this Agreement) and the other Non-Dissenting Stockholders (by virtue of the approval of the Merger and the adoption of this Agreement) hereby irrevocably authorizesnominate, directs constitute and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act appoint The Canopy Group, Inc. as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative and the agent and true and lawful attorney-in-fact of the Non-Dissenting Stockholders, with full power of substitution, to (i) take act in the name, place and stead of the Non-Dissenting Stockholders for purposes of executing any documents and all taking any actions (includingthat the Stockholders’ Representative may, without limitationin its sole discretion, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement determine to be taken necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under Section 10 or under the Escrow Agreement. The Canopy Group, Inc. hereby accepts its appointment as the Stockholders’ Representative.
(b) The Non-Dissenting Stockholders (by such Persons; (iivirtue of the approval of the Merger and the adoption of this Agreement) exercise such other rights, power and authority, as are authorized, delegated and granted grant to the Stockholders’ Representative pursuant full authority to this Agreement; execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (iiiin the name of any or all of the Non-Dissenting Stockholders or otherwise) exercise such rights, power any and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees all documents that the Stockholders’ Representative shall not be liable for any actions taken or omitted may, in its sole discretion, determine to be taken under 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 11.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with this Agreement or the transactions contemplated hereby or therebyContemplated Transactions, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Non-Dissenting Stockholder by the Stockholders’ RepresentativeRepresentative with respect to matters relating to Section 10 or the Escrow Agreement, and on any other action taken or purported to be taken on behalf of any such Person Non-Dissenting Stockholder by the Stockholders’ Representative with respect to matters relating to Section 10 or the Escrow Agreement, as fully binding upon each such Person.Non-Dissenting Stockholder. Notwithstanding anything to the contrary contained in this Section 11.1, the Stockholders’ Representative shall not have the
Appears in 1 contract
Stockholders’ Representative. Each Stockholder For purposes of this Agreement, the Stockholders hereby consent to, confirm and irrevocably authorizes, directs and appoints effect the appointment of Garl▇▇ ▇. ▇▇▇mes as the Representative, as representative of the Stockholders, and as the attorney-in-fact for and on behalf of each Stockholder, and, subject to the express limitations set forth below, the taking by the Representative of any and all actions and the making of any decisions required or permitted to be taken by him under this Agreement, including, without limitation, the exercise of the power to (i) authorize delivery to Universal of the Escrow Shares or any portion thereof, in satisfaction of Claims, (ii) agree to, negotiate, enter into settlements and compromises of, and demand and conduct arbitration and comply with orders of courts and awards of arbitrators with respect to such Claims, (iii) resolve any Claims, and (iv) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. The Representative will have unlimited authority and power to act on behalf of each Stockholder with respect to this Agreement and the disposition, settlement or other handling of all Claims, rights or obligations arising under this Agreement so long as all Stockholders are treated in the same manner. The Stockholders will be bound by all actions taken by the Representative in connection with this Agreement, and Universal will be entitled to rely on any action or decision of the Representative. In performing his functions hereunder, the Representative will not be liable to the Stockholders in the absence of gross negligence or willful misconduct. In the event the Representative becomes unavailable or unwilling to continue in his capacity herewith, the Representative may resign and be discharged from his duties or obligations hereunder by giving his resignation to the parties to this Agreement, specifying a date not less than ten days following such notice date of when such resignation will take effect and, in that event, Jame▇ ▇▇▇▇▇▇▇ ▇▇▇l be deemed to be appointed by the Stockholders as the new Representative. In the event Mr. ▇▇▇▇▇▇▇ ▇▇▇n becomes unavailable or unwilling to act continue in his capacity as sole Representative, he may resign and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required discharged from his duties or permitted obligations hereunder by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted giving his resignation to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating parties to this Agreement, specifying a date not less than ten days following such notice date of when such resignation will take effect. In that event, the Stockholder(s) owning a majority of the Escrow Shares will designate a successor Representative prior to the expiration of such ten-day period by giving written notice to the Escrow Agent and Universal. If the Stockholders have not appointed a successor Representative 11 12 and notified Universal of the identity and address of such successor Representative within such ten-day period, Universal shall be entitled relieved of the obligation to send notices to or obtain consents from the Representative while there is no Representative and, for purposes of this Agreement, in each such case, it shall be deemed that the Representative has received the required notice and/or approved such action. Until notified in writing by the Representative that he has resigned, the Escrow Agent may rely conclusively (without further evidence and act upon the directions, instructions and notices of the Representative named above and, thereafter, upon the directions, instructions and notices of any kind whatsoever) on any document successor Representative named in a writing executed by or purported to be executed on behalf a majority-in-interest of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Stockholders filed with the Stockholders’ Representative as fully binding upon each such PersonEscrow Agent.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) In order to administer efficiently (i) the implementation of the Agreement by the Stockholders and (ii) the settlement of any dispute with respect to the Agreement, the Stockholders hereby irrevocably authorizes, directs and appoints ▇▇. ▇designate Gary ▇▇▇ ▇▇▇▇▇▇▇▇ to act as sole and exclusive ▇▇ their representative for such Stockholder (the “"Stockholders’ ' Representative”").
(b) and authorizes and directs The Stockholders hereby authorize the Stockholders’ ' Representative to (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Stockholders or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and (iii) to take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to Buyer.
(c) In the event that the Stockholders' Representative dies, becomes legally incapacitated or resigns from such Personsposition, John ▇▇▇▇▇▇▇▇▇, ▇▇I shall fill such vacancy and shall be deemed to be the Stockholders' Representative for all purposes of this Agreement; however, no change in the Stockholders' Representative shall be effective until Buyer is given notice of it by the Stockholders.
(d) By their execution of this Agreement, the Stockholders agree that:
(i) Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any actions required or permitted to be taken by the Stockholders or the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon 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; and , except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable remedies available at law for any actions taken or omitted to be taken under or in connection with breach of the provisions of this Agreement or the transactions contemplated hereby or therebySection 1.4 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.4; and
(iv) the provisions of this Section 1.4 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death, granted by the Stockholders to the Stockholders’ ' Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively binding upon the executors, heirs, legal representatives and successors of each Stockholder.
(without further evidence of any kind whatsoevere) on any document executed by or purported to be executed on behalf of any Stockholder All fees and expenses incurred by the Stockholders’ Representative, and on any other action taken or purported to ' Representative shall be taken on behalf of any such Person paid by the Stockholders’ Representative , except as fully binding upon each such Personprovided in Section 7.1 hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizes, directs constitutes and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ (in such capacity, "Stockholders' Representative") as such Stockholder's attorney-in-fact and agent in connection with all actions to act as sole be taken by the Stockholders pursuant to Section 3.02, Section 4.01 and exclusive representative for such Stockholder Articles XII and XIV (including the “Stockholders’ Representative”) settlement of indemnification claims and authorizes and directs the decision to pursue legal action against other Persons on behalf of the Stockholders’ Representative to ).
(b) Each Stockholder hereby agrees that:
(i) take any and in all actions (includingmatters in which action by the Stockholders' Representative is required or permitted, without limitation, executing and delivering any documents, incurring any costs and expenses the Stockholders' Representative is authorized to act on behalf of such Stockholder, notwithstanding any dispute or disagreement among the Stockholders or between any Stockholder and making the Stockholders' Representative, and Purchaser shall be entitled to rely on any and all determinations) which may be required or permitted action taken by the Stockholders' Representative under this Agreement without any liability to, or obligation to be taken by inquire of, any of the other Stockholders, notwithstanding any knowledge on the part of Purchaser of any such Persons; dispute or disagreement;
(ii) exercise such other rights, power and authority, as are authorized, delegated and granted notice to the Stockholders’ Representative pursuant ' Representative, delivered in the manner provided in Section 17.01, shall be deemed to be notice to all Stockholders for the purposes of this Agreement; and and
(iii) exercise such rights, the power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith' Representative, as described in this Agreement, shall be absolutely continue in force until all rights and irrevocably binding on each such Person as if such Person personally had taken such actionobligations of the Stockholders under this Agreement shall have terminated, exercised such rights, power expired or authority or made such decision or determination in such Person’s capacity. been fully performed.
(c) Each Stockholder agrees that shall severally indemnify the Stockholders’ ' Representative against any Losses (except such as result from such Stockholders' Representative's gross negligence or willful misconduct) that such Stockholder may suffer or incur in connection with any action or omission of such person as the Stockholders' Representative. The Stockholders' Representative shall not be liable for to any actions Stockholder with respect to any action or omission taken or omitted to be taken under or in connection with by the Stockholders' Representative pursuant to this Agreement or the transactions contemplated hereby or therebySection 17.11, except for such actions taken the Stockholders' Representative's gross negligence or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Option and Acquisition Agreement (CCC Information Services Group Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. Beecken P▇▇▇▇ O’▇▇▇▇▇ to act as sole & Company, LLC has been irrevocably constituted and exclusive appointed stockholder’s representative for such Stockholder (the “Stockholders’ Representative”) for the Holders listed on Schedule 2.5 hereof (each a “Preferred Holder” and authorizes collectively, the “Preferred Holders”), as such Preferred Holders’ agent and directs 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, the Stockholders’ Representative Escrow 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 Preferred Holder could if then personally present and acting alone. Without limitation, (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required communication or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted delivery validly delivered to the Stockholders’ Representative pursuant shall be deemed to have been validly delivered to each such Preferred Holder, (ii) any consent given or waiver of any provision of this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions takenEscrow Agreement or any other agreement entered into in connection with this Agreement, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely binding upon each Preferred Holder, and irrevocably binding on each such Person (iii) except as if such Person personally had taken such actionotherwise provided in Section 11.1, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable is hereby authorized to execute for and on behalf of each Preferred Holder any actions taken amendment to this Agreement, the Escrow Agreement or omitted to be taken under or any other agreement entered into in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductAgreement. The Buyer This appointment of agency and this power of attorney is coupled with an interest and shall be entitled to deal exclusively with irrevocable and shall not be terminated by any Principal Stockholder or by operation of law. Neither the Stockholders’ Representative on all matters nor any agent employed by it shall incur any liability to any Preferred Holder by virtue of the failure or refusal of the Stockholders’ Representative for any reason to consummate the Transaction or relating to this Agreementthe performance of its other duties hereunder or any of its omissions or actions with respect thereto. The Preferred Holders, jointly and shall be entitled severally, agree to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by indemnify the Stockholders’ Representative, his successors, assigns, agents, attorneys and affiliates (the “Stockholders’ Representative Parties”) and to hold the Stockholders’ Representative Parties harmless against any and all losses, liabilities or expenses incurred without bad faith on any other action taken the part of the Stockholders’ Representative and arising out of or purported to be taken on behalf of any such Person in connection with his duties as Stockholders’ Representative, including the reasonable costs and expenses incurred by the Stockholders’ Representative as fully binding upon each such Personin defending against any claim or liability in connection herewith or the Escrow Agreement.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) Target Stockholders hereby irrevocably authorizesnominate, directs constitute and appoints appoint J▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole the agent and exclusive representative for such Stockholder true and lawful attorney-in-fact of Target Stockholders (the “Stockholders’ Representative”) ), with full power of substitution, to act in the name, place and authorizes stead of Target Stockholders for purposes of executing any documents and directs the taking any actions that Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with any of the transactions contemplated by this Agreement. J▇▇▇ ▇. ▇▇▇▇▇▇▇ hereby accepts his appointment as a Stockholders’ Representative.
(i) take Target Stockholders hereby grant to Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of Target Stockholders (in the name of any or all of Target Stockholders or otherwise) any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the documents that Stockholders’ Representative pursuant may, in his sole discretion, determine to this Agreement; be necessary, desirable or appropriate, in such forms and (iii) exercise containing such rights, power and authority provisions as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithmay, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such actionin his sole discretion, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted determine to be taken appropriate (including any amendment to or waiver of rights under or any of this Agreement). Notwithstanding anything to the contrary contained in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Agreement:
(1) Buyer and Buyer Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all Target Stockholder-related matters relating to this AgreementAgreement and the transactions contemplated by this Agreement (including all matters relating to any notice to, and or any Consent to be given or action to be taken by, any Target Stockholder); and
(2) each Buyer Indemnitee shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Target Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person Target Stockholder by the any Stockholders’ Representative Representative, as fully binding upon such Target Stockholder.
(ii) Target Stockholders recognize and intend that the power of attorney granted in this Section 12.6:
(1) is coupled with an interest and is irrevocable;
(2) may be delegated by Stockholders’ Representative; and
(3) shall survive the death or incapacity of each Target Stockholder.
(iii) The Stockholders’ Representative shall be entitled to treat as genuine, and as the document it purports to be, any letter, facsimile, telex or other document that is believed by Stockholders’ Representative to be genuine and to have been telexed, telegraphed, faxed or cabled by a Target Stockholder or to have been signed and presented by a Target Stockholder.
(iv) In the event of the resignation, death or incapacity of a Stockholders’ Representative, then a majority of the Shares held by Target Stockholders as of the Closing (or by their personal representatives) shall appoint a successor to such Personposition. No Stockholders’ Representative shall resign until a successor representative shall have been appointed.
(v) All expenses incurred by Stockholders’ Representative in connection with the performance of the duties of Stockholders’ Representative shall be borne and paid by Target Stockholders.
(b) Notwithstanding anything to the contrary contained in this Agreement, Stockholders’ Representative shall not be liable for any error of judgment or any action taken, suffered or omitted to be taken on behalf of Target Stockholders (or any of them) pursuant to this Section 12.6(b). Each Target Stockholder agrees to indemnify Stockholders’ Representative for, and hold such Person harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees and expenses, incurred on the part of, or in connection with, any action or decision taken or made and on its behalf by such Stockholders’ Representative.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby has irrevocably authorizes, directs constituted and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the appointed Stockholders’ Representative as its true and lawful agent and attorney-in-fact, with full power of substitution to (i) take any perform the duties of Stockholders’ Representative under the terms of this Agreement and to act in such Stockholder’s name, place and stead with respect to all transactions contemplated by and all actions terms and provisions 45 of this Agreement and the Related Documents, and to act on such Stockholder’s behalf in any Proceeding involving this Agreement or any Related Document, and to do or refrain from doing all such further acts and things. The Stockholders’ Representative shall have all rights and powers set forth herein in addition to all the rights and powers it shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Related Documents, including the power:
(includinga) to receive on behalf of, without limitationand to distribute (after (A) payment of any unpaid expenses and Liabilities chargeable to Stockholders or the Company Group prior to the Closing in connection with the transactions contemplated by this Agreement and the Related Documents and (B) payment of any expenses incurred by Stockholders’ Representative in its capacity as such, executing including the expenses of attorneys and delivering accountants, to the extent the Expense Reserve Amount is exhausted), all amounts payable to such Stockholder under the terms of this Agreement and the Related Documents;
(b) to do or refrain from doing any documents, incurring any costs and expenses further act or deed on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental deems necessary or appropriate in its sole discretion relating to the foregoing. Any such actions taken, exercises subject matter of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or and the transactions contemplated hereby or therebyRelated Documents, except for as fully and completely as such actions taken or omitted Stockholder could do if personally present;
(c) to be taken resulting from amend this Agreement on behalf of Stockholders; and
(d) to replace itself as Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) The Key Stockholders (by virtue of their execution of this Agreement) and the other Non-Dissenting Stockholders (by virtue of the approval of the Merger and the adoption of this Agreement) hereby irrevocably authorizesnominate, directs constitute and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act appoint Insight as sole the agent and exclusive representative for such Stockholder true and lawful attorney-in-fact of the Non-Dissenting Stockholders (the “Stockholders’ Representative”) ), with full power of substitution, to act in the name, place and authorizes stead of the Non-Dissenting Stockholders for purposes of executing any documents and directs taking any actions that the Stockholders’ Representative to (i) take any and all actions (includingmay, without limitationin its sole discretion, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement determine to be taken necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under Section 10 or under the Escrow Agreement. Insight hereby accepts its appointment as the Stockholders’ Representative.
(b) The Key Stockholders (by such Persons; virtue of their execution of this Agreement) and the other Non-Dissenting Stockholders (iiby virtue of the approval of the Merger and the adoption of this Agreement) exercise such other rights, power and authority, as are authorized, delegated and granted grant to the Stockholders’ Representative pursuant full authority to this Agreement; execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (iiiin the name of any or all of the Non-Dissenting Stockholders or otherwise) exercise such rights, power any and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees all documents that the Stockholders’ Representative shall not be liable for any actions taken or omitted may, in its sole discretion, determine to be taken under 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 11.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with this Agreement or the transactions contemplated hereby or therebyContemplated Transactions, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Non-Dissenting Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person Non-Dissenting Stockholder by the Stockholders’ Representative Representative, as fully binding upon such Non-Dissenting Stockholder.
(c) The power of attorney granted in Section 11.1(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 of the Non-Dissenting Stockholders.
(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 Key Stockholder or other Non-Dissenting Stockholder 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 gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or failure to act on the part of the Stockholders’ Representative pursuant to such Personadvice shall not subject the Stockholders’ Representative to liability to any Non-Dissenting Stockholder. The Key Stockholders and the Non-Dissenting Stockholders shall jointly and severally indemnify the Stockholders’ Representative and hold it harmless against and from any loss, liability or expense (including attorneys’ fees reasonably incurred as a result of the performance of its duties under this Agreement) incurred without gross negligence, willful misconduct or bad faith on its part and arising out of or in connection with the acceptance or administration of its duties hereunder.
(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 11.1 or cease to function in its capacity as Stockholders’ Representative for any reason whatsoever, then the Key Stockholders shall, within 30 days thereof, appoint a successor and, promptly thereafter, shall notify Parent and the Escrow Agent
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints by signing this Agreement, designates Rich▇▇▇ ▇. ▇▇▇▇▇ (▇▇, in the event that he is unable or unwilling to serve or resigns, W. Jept▇▇ ▇▇▇▇▇▇▇▇) ▇▇ to act as sole and exclusive be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any and all determinations) which may be required or permitted act of any Stockholder, by this Agreement to be taken operation of law, whether by such Persons; Stockholder's death or any other event.
(iid) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to Notwithstanding the foregoing. Any such actions taken, the Stockholder Representative shall inform the other Stockholder of all notices received, and of all actions, decisions, notices and exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ Stockholder Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each Stockholder (a) The holders of Company Securities, by approving this Agreement and the transactions contemplated hereby, including the Merger, and the Management Contributors, hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act (i) appoint Shareholder Representative Services LLC as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”Representative and the agent and true and lawful attorney-in-fact of the holders of Company Securities and the Management Contributors and (ii) and authorizes and directs authorize the Stockholders’ Representative to take, and consent to the Stockholders’ Representative taking, the following actions for and on behalf of holders of Company Securities and the Management Contributors following the
(i1) to give and receive notices and communications; (2) to take any and all actions (includingrelating to claims to hold harmless, without limitationindemnify, executing and delivering compensate, reimburse or pay any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such PersonsIndemnitee hereunder; (ii3) exercise to authorize delivery to Parent of a portion of the Escrow Fund in satisfaction of claims by the Indemnitees; (4) to object to such deliveries; (5) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (6) to take all other rights, power and authority, as are authorized, delegated and granted to actions contemplated for the Stockholders’ Representative pursuant to in this Agreement and in the Escrow Agreement; (7) to execute and (iii) exercise such rights, power and authority as are incidental deliver all documents necessary or desirable to carry out the foregoing. Any such actions taken, exercises intent of rights, power or authority, this Agreement and any decision other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (8) to make all elections or determination made decisions contemplated by this Agreement and any other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (9) to amend, modify or waive provisions of this Agreement (subject to Section 9.2 and Section 9.3) or any of the other related agreements to which the Stockholders’ Representative consistent therewithis a party; (10) to engage, shall be absolutely employ or appoint any agents or representatives (including attorneys, accountants and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that consultants) to assist the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection complying with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductduties and obligations; and (11) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Buyer Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all such matters relating to this Agreement, Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder holder of Company Securities or Management Contributor by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any holder of Company Securities or Management Contributor by the Stockholders’ Representative, as being fully binding upon such Person holder. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the holders of Company Securities and the Management Contributors. Any decision or action by the Stockholders’ Representative as fully hereunder, including any agreement between the Stockholders’ Representative and Parent relating to the defense, payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all holders of Company Securities and all Management Contributors and shall be final, binding and conclusive upon each such Personholder. No holder of Company Securities or Management Contributor shall have the right to object to, dissent from, protest or otherwise contest the same.
(b) If the Stockholders’ Representative shall resign for any reason become unable to fulfill its responsibilities as the agent of the holders of Company Securities, then the former holders of two-thirds of the outstanding shares of Series B Preferred Stock shall, within ten (10) days after the date upon which the Stockholders’ Representative becomes unable to fulfill its responsibilities, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall 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 ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇.
(c) The holders of Company Securities and the Management Contributors recognize and intend that the power of attorney granted in Section 9.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall survive the death or incapacity of any holder of Company Securities.
(d) The Stockholders’ Representative shall not be liable to any holder of Company Securities 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 holders of Company Securities and the Management Contributors shall, subject to the following sentence, indemnify the Stockholders’ Representative and hold it harmless from and against, compensate it for, reimburse it for and pay any loss, liability or expense arising out of or in connection with the acceptance or administration of its duties hereunder (the “Representative Losses”), in each case as such Representative Loss is suffered or incurred; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or bad faith of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the holders of Company Securities the amount of such indemnified Representative Loss attributable to such gross negligence or bad faith. The Representative Losses shall be satisfied: (i) from the Stockholders’ Representative Fund; and (ii) to the extent the amount of the Representative Losses exceeds amounts available to the Stockholders’ Representative under (i), from holders of Company Securities, severally and not jointly and in proportion to their respective Pro Rata Share. As soon as practicable after the date on which the final obligation of the Stockholders’ Representative under this Agreement and the Escrow Agreement have been discharged or such other date as the Stockholders’ Representative deems appropriate, any amounts remaining in the Stockholders’ Representative Fund shall be distributed in accordance with the provisions of Section 2.5(e).
Appears in 1 contract
Sources: Merger Agreement (Accelrys, Inc.)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (a) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Stockholders Representative”) is hereby appointed, authorized and empowered to act as sole the representative, on behalf and for the benefit of the Equity Holders, as the exclusive representative for such Stockholder (agent and attorney-in-fact to act on behalf of each holder of SDRC Stock or options, in connection with and to facilitate the “Stockholders’ Representative”) consummation of the transactions contemplated hereby, including pursuant to the Escrow Agreement, which shall include, but not be limited to, the power and authorizes and directs the Stockholders’ Representative to authority:
(i) to execute and deliver the Escrow Agreement (with such modifications or changes therein as to which the Stockholders Representative, in his or her sole discretion, shall have consented) and to agree to such amendments or modifications thereto as Stockholders Representative, in his or her sole discretion, determine to be desirable;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the Escrow Agreement and the consummation of the transactions contemplated hereby and thereby as Stockholders Representative, in his or her sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of the holders of SDRC Stock or options (including Stockholders Representative, in his or her capacity as a Stockholder or option holder) and to enforce and protect the rights and interests of the Stockholders Representative arising out of or under or in any manner relating to this Agreement and the Escrow Agreement and to take any and all actions which Stockholders Representative believes are necessary or appropriate under the Escrow Agreement and/or this Agreement for and on behalf of the Equity Holders, including, without limitation, asserting or pursuing any Action against Acquiror, Merger Sub and/or Surviving Corporation, defending any Third Party Claims or Actions by the Acquiror Indemnitees, consenting to, compromising or settling any such Actions, conducting negotiations with Acquiror, Surviving Corporation and their respective representatives regarding such Actions, 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;
(iv) to refrain from enforcing any right of the Equity Holders or any of them and/or Stockholders Representative arising out of or under or in any manner relating to this Section 2.7; provided, however, that no such failure to act on the part of Stockholders Representative, except as otherwise provided in this Agreement or in the Escrow Agreement, shall be deemed a waiver of any such right or interest by Stockholders Representative or by the Equity Holders unless such waiver is in writing signed by the waiving party or by Stockholders Representative;
(v) to receive payments of the Merger Consideration on behalf of the Equity Holders and to distribute the same, in the Pro Rata Portion, to the Equity Holders.
(b) In addition to the power and authority to act on behalf of the Equity Holders set forth in Section 2.7(a), the Stockholders Representative shall have the specific power and authority to act on behalf of the Surviving Corporation to negotiate and, subject to the Acquiror’s prior written approval, which may be withheld in its sole discretion consistent with the terms of this Agreement, settle any and all claims related to options to acquire Common Stock, including any increase in Taxes of the Surviving Corporation or any former holder of options listed on Schedule 2.7(b) of the SDRC Disclosure Schedules, costs of preparing and/or amending tax returns and any interest and penalties related thereto (the “Special Claims”). In connection with the foregoing, at the Closing, the Acquiror shall transfer $650,000 (the “Special Claims Funds”) to the Stockholders Representative to be used by the Stockholders Representative to pay: (i) expenses (including, without limitation, executing those of attorneys, accountants and delivering other professionals) incurred by Stockholders Representative in his or her capacity as representative related to the Special Claims (and shall use such amounts to pay any documents, incurring any costs of the fees and expenses on behalf of such Stockholder they incur in connection with disputes related to Article IX and making any adjustments thereto), and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsSpecial Claims, power and authority, each as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made approved by the Stockholders’ Acquiror in accordance with the first sentence of this Section 2.7(b). In the event the Special Claims Funds are insufficient to settle the Special Claims, then the Stockholders Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that entitled to use Expense Funds upon receipt of the Stockholders’ prior written approval of the Aquiror.
(c) Stockholders Representative shall not be liable entitled to any fee, commission or other compensation for the performance of his or her services under this Section 2.7, but shall be entitled to the payment of all his or her expenses incurred as representative. In connection with the foregoing, at the Closing, the Acquiror shall transfer $500,000 (the “Expense Funds”) to Stockholders Representative, which shall be in addition to the Special Claims Funds, to be used by Stockholders Representative to pay expenses incurred by Stockholders Representative in his or her capacity as representative (and shall use such amounts to pay any of the fees and expenses they incur in connection with disputes related to Article IX and adjustments thereto). 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 omission of Stockholders Representative pursuant to such advice shall in no event subject Stockholders Representative to liability to any Equity Holder. Each Equity Holder shall indemnify the Stockholders Representative in the Pro Rata Portion of all Damages suffered by him or her, of any nature whatsoever (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened or any claims whatsoever), arising out of or in connection with any Action or in connection with any appeal thereof, relating to the acts or omissions of Stockholders Representative hereunder, or under the Escrow Agreement or otherwise. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of Stockholders Representative hereunder for his or her willful misconduct. In the event of any indemnification hereunder, upon written notice from Stockholders Representative to the Equity Holders as to the existence of a deficiency toward the payment of any such indemnification amount, each Equity Holder shall promptly deliver to Stockholders Representative full payment of their Pro Rata Portion of the amount of such deficiency. Once the Shareholders Representative determines, in her sole discretion, that the Shareholders Representative will not incur any additional expenses in his or her capacity as the Shareholders Representative, then the Shareholders Representative shall, upon the prior written approval of the Acquiror, distribute the remaining unused Expense Funds and Special Claims Funds, if any, to the Equity Holders in their Pro Rata Portions.
(d) All of the indemnities, immunities and powers granted to Stockholders Representative under this Agreement shall survive the date of this Agreement and/or any termination of this Agreement and/or the Escrow Agreement.
(e) Acquiror and Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken under or in connection with by Stockholders Representative pursuant to this Agreement and the Escrow Agreement, all of which actions or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer omissions shall be entitled to deal exclusively legally binding upon the Equity Holders.
(f) The grant of authority provided for herein (i) is coupled with the Stockholders’ Representative on all matters relating to this Agreement, an interest and shall be entitled to rely conclusively (without further evidence irrevocable and survive the death, incompetency, bankruptcy or liquidation of any kind whatsoeverEquity Holder; and (ii) shall survive the consummation of the Merger.
(g) Should Stockholders Representative resign or be unable to serve, the Stockholders Representative shall appoint a single substitute agent to take on any document executed by the responsibility of such representative hereunder, whose appointment shall be effective on the date of Stockholders Representative’s designee’s resignation or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personincapacity.
Appears in 1 contract
Sources: Merger Agreement (ARGON ST, Inc.)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (a) ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr., acting unanimously together, are hereby designated to act as sole the representative, agent and exclusive representative attorney-in-fact for such Stockholder the Stockholders and their successors and assigns in accordance with this Section 2.08, effective immediately prior to the Effective Time, for all purposes under this Agreement (the “Stockholders’ Representative”), and the Stockholders’ Representative, by their signatures below, agrees to serve in such capacity.
(b) and authorizes and directs Effective immediately prior to the Effective Time, in their capacity as Stockholders’ Representative, the Stockholders’ Representative shall have the power and authority to take such actions on behalf of each Stockholder as the Stockholders’ Representative, in its sole judgment, may deem to be in the best interests of the Stockholders or otherwise appropriate on all matters related to or arising from this Agreement. Such powers shall include, without limitation:
(i) take any and all actions (including, without limitation, executing and delivering any documentsall certificates, incurring any costs consents and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted other documents contemplated by this Agreement or as may be necessary or appropriate to be taken by such Persons; effect the Merger and other transactions contemplated hereby;
(ii) exercise such giving and receiving notices and other rightscommunications relating to this Agreement;
(iii) taking or refraining from taking any actions (whether by negotiation, power settlement, litigation or otherwise) to resolve or settle all matters and authoritydisputes arising out of or related to this Agreement and the performance or enforcement of the obligations, duties and rights pursuant to this Agreement;
(iv) taking all actions necessary or appropriate in connection with any indemnification claim (as are authorizeddefined herein) pursuant to Article XI;
(v) engaging attorneys, delegated accountants, financial and granted to other advisors, necessary or appropriate, in the sole discretion of the Stockholders’ Representative pursuant to in the performance of its duties under this Agreement; and and
(iiivi) exercise such rights, power and authority as are incidental to taking all actions necessary or appropriate in the foregoing. Any such actions taken, exercises judgment of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithfor the accomplishment of the foregoing.
(c) The power of attorney appointing the Stockholder Representative as attorney-in-fact is coupled with an interest and the death or incapacity of any Stockholder shall not terminate or diminish the authority and agency of the Stockholders’ Representative.
(d) If either ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr. resigns or is unable to serve in their capacities as Stockholders’ Representative, then within ten (10) Business Days of the resignation or inability to serve by such individual, a majority in interest of Persons who were Stockholders immediately prior to the Effective Time will promptly designate another Person or Persons to serve in such capacity. The decisions and actions of any replacement Stockholders’ Representative shall be absolutely and irrevocably binding on each such Person be, for all purposes, those of the Stockholders’ Representative as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacityoriginally named herein. Each Stockholder agrees that the The Stockholders’ Representative shall not be liable to any Stockholder for any act done or omitted as Stockholders’ Representative, except to the extent that the Stockholders’ Representative was grossly negligent or engaged in willful misconduct. All fees and expenses, including for attorneys, accountants and financial and other advisors, paying agents and other persons and insurance, in each case necessary or appropriate and engaged by the Stockholders’ Representative in the performance of its duties under this Agreement shall be paid from the Escrow Fund.
(e) The Stockholders shall, jointly and severally, indemnify, defend and hold harmless the Stockholders’ Representative and their representatives, successors and assigns, from and against any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) arising as a result of or incurred in connection with any actions taken or omitted to be taken under by the Stockholders’ Representative pursuant to the terms of this Agreement, except to the extent it is demonstrated that the Stockholders’ Representative was grossly negligent or engaged in willful misconduct. In addition, each Stockholder forever voluntarily releases and discharges the Stockholders’ Representative and its representatives, successors and assigns, from any and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs), whether known or unknown, anticipated or unanticipated, arising as a result of or incurred in connection with this Agreement or the transactions contemplated hereby or thereby, except for such any actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personpursuant to the terms of this Agreement, except to the extent it can be demonstrated that the Stockholders’ Representative was grossly negligent.
Appears in 1 contract
Sources: Merger Agreement (Insulet Corp)
Stockholders’ Representative. (a) Each Stockholder hereby Stockholder, by execution of this Agreement, irrevocably authorizes, directs constitutes and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ Thermo Development, Inc. (which, by execution of this Agreement, hereby accepts such appointment) to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative and as the sole agent and attorney-in-fact for and on behalf of the Stockholders (in their capacity as such), with full power of substitution, to take all actions on behalf of the Stockholders in connection with this Agreement, including (i) take any to execute and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses deliver on behalf of such Stockholder the Stockholders any amendment, consent or waiver under this Agreement and making any the other Transaction Documents, (ii) to assert, and to agree to resolution of, all determinationsclaims and disputes hereunder or thereunder, including under Article 8 hereof, (iii) to retain legal counsel and other professional services, at the expense of the Stockholders, in connection with the performance by the Stockholders’ Representative of this Agreement and the other Transaction Documents, (iv) to execute and deliver on the Stockholders’ behalf all documents and instruments which may be required executed and delivered pursuant to this Agreement and the other Transaction Documents, (v) to make and receive notices and other communications pursuant to this Agreement and the other Transaction Documents and service of process in any Action arising out of or related to this Agreement and the other Transaction Documents, (vi) to negotiate, settle or compromise any Action arising out of or related to this Agreement or the other Transaction Documents or any of the transactions hereunder or thereunder, including to take any action (or determine not to take action) in connection with the defense, prosecution, settlement, compromise or other resolution of any claim for indemnification pursuant to Article 8, and (vii) to do each and every act and exercise all rights that are either (x) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (y) mandated or permitted by the terms of this Agreement or the other Transaction Documents. Stockholders’ Representative shall use reasonable efforts to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and keep the Stockholders reasonably informed with respect to actions of the Stockholders’ Representative pursuant to the authority granted to the Stockholders’ Representative pursuant to under this Agreement; and (iii) exercise such rights, power and authority as are incidental Agreement which actions have a material impact on the amounts payable to the foregoing. Any such actions takenStockholders.
(b) The power of attorney granted in this Section 8.09 is coupled with an interest and is irrevocable, exercises of rights, power or authority, and any decision or determination made may be delegated by the Stockholders’ Representative consistent therewithand shall survive the death, dissolution or incapacity of each Stockholder. Such appointment and powers may be changed by the Stockholders having a majority in interest of the Percentage Interest of all Stockholders as of such time (including in the event of the resignation, death, disability or other incapacity of an Stockholders’ Representative that is an individual), and, following the provision of notice to Parent, the newly appointed representative shall be absolutely the Stockholders’ Representative for all purposes hereunder, and irrevocably binding on each any such Person successor shall succeed the Stockholders’ Representative as if such Person personally had taken such actionthe Stockholders’ Representative hereunder. Neither the removal of, exercised such rightsnor the appointment of a successor to, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for affect in any manner the validity or enforceability of any actions taken or omitted to be taken under agreements, understandings or in connection with this Agreement or commitments entered into by the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from prior Stockholders’ Representative’s willful misconduct, which shall continue to be effective and binding on the Stockholders. The Buyer shall be entitled to deal exclusively with For the avoidance of doubt, any compromise or settlement of any matter by the Stockholders’ Representative on hereunder shall be binding on, and fully enforceable against, all matters relating to this AgreementStockholders. No bond shall be required of the Stockholders’ Representative.
(c) A decision, act, consent or instruction of the Stockholders’ Representative hereunder shall constitute a decision, act, consent or instruction of all of the Stockholders and shall be entitled final, binding and conclusive upon each of the Stockholders, and Parent, Merger Sub and, after the Effective Time, the Surviving Company, may rely upon any such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every such Stockholder. The Parent Indemnified Parties are hereby relieved from any Liability to rely conclusively any Person for any acts done by them in accordance with any such decision, act, consent or instruction of the Stockholders’ Representative and the Stockholders agree to hold the Parent Indemnified Parties harmless and indemnify them for any Liability resulting from any such decision, act, consent or instruction of the Stockholder’s Representative. Each Stockholder hereby agrees that for any Action arising under this Agreement or any Transaction Document such Stockholder may be served legal process by registered mail to the address set forth in Section 10.01 for the Stockholders’ Representative (without further evidence or any alternative address designated to the parties in writing by the Stockholders’ Representative), and that service in such manner shall be adequate and such Stockholder shall not assert any defense of claim that service in such manner was not adequate or sufficient in any court in any jurisdiction. Each Stockholder shall promptly provide written notice to the Stockholders’ Representative of any kind whatsoeverchange of address of such Stockholder.
(d) on Without limiting the generality of the foregoing and for the avoidance of doubt, for purposes of Article 8, if any document executed by Stockholder Indemnified Party is seeking indemnification as the Indemnified Party hereunder, or purported to be executed indemnification is sought against any Stockholder as an Indemnifying Party hereunder, then, in either such case, the Stockholders’ Representative shall act on behalf of, and receive notice on behalf of, such Stockholder.
(e) The Stockholders’ Representative, solely in its capacity as the representative of any Stockholder the Stockholders, represents and warrants to Parent and Merger Sub, as of the date hereof and as of the Closing Date, as follows:
(i) the Stockholders’ Representative is a corporation duly organized, validly existing and in good standing under the laws of Colorado, and has all requisite corporate power and authority and all permits required to carry on its business in all material respects as currently conducted;
(ii) the execution and delivery of this Agreement by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person the performance by the Stockholders’ Representative as fully of its obligations hereunder, have been duly authorized by all necessary corporate action on the part of the Stockholders’ Representative;
(iii) this Agreement has been duly executed and delivered by the Stockholders’ Representative and this Agreement constitutes a legally valid and binding obligation of the Stockholders’ Representative, enforceable against the Stockholders’ Representative in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity); and
(iv) the execution and delivery of the Transaction Documents to which it is (or will be) a party by the Stockholders’ Representative, and the performance by the Stockholders’ Representative of its obligations thereunder do not and will not (A) conflict with or result in a violation of the organizational documents of the Stockholders’ Representative, (B) violate any Applicable Law or (C) require any consent or approval that has not been given or other action that has not been taken by any Person under any Contract binding upon each such Personthe Stockholders’ Representative.
(f) Notwithstanding anything to the contrary in this Agreement, the representations and warranties of the Stockholders’ Representative shall survive the Closing indefinitely or until the latest date permitted by Applicable Law.
(g) Each Stockholder, by its acceptance of its share of the Merger Consideration payable at Closing hereunder, accepts and agrees to be bound by the provisions set forth in this Section 8.09.
Appears in 1 contract
Sources: Merger Agreement (Globalstar, Inc.)
Stockholders’ Representative. Each (a) The Letters of Transmittal shall provide that any Stockholder hereby irrevocably authorizesor Optionholder receiving consideration pursuant to this Agreement shall have agreed upon execution and delivery of the Letters of Transmittal, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs that the Stockholders’ Representative to ' Representative, will be appointed as such person's Attorney-in-Fact and representative, with the obligations, power and authority (i) take to do any and all actions (including, without limitation, executing things and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making to execute any and all determinations) documents or other papers, in each such person's name, place and stead, in any way in which may be required or permitted each such person could do if personally present, in connection with this Agreement and the transactions contemplated by this Agreement to be taken by such Persons; (the "Transactions"), (ii) exercise such other rightsto amend, power and authoritycancel or extend, as are authorizedor waive the terms of, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; Agreement or any ancillary agreement and (iii) exercise to act on behalf of Bionics Trust with respect to any claims (including the settlement thereof) made by Parent for indemnification pursuant to Article VII or any dispute arising under Section 2.11 ; provided, however, that without the written consent of the Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights at such rightstime, power the Stockholders' Representative shall not take or approve any of the matters listed on Exhibit H; provided, further, that if the Stockholders' Representative has not completed a required solicitation of consent and authority as are incidental notified Parent in writing of the results of such solicitation within 30 business days of written request by Parent seeking the consent of the Earn Out Recipients with respect to any of the foregoingmatters listed on Exhibit H, such consent shall be deemed not to have been provided. Any such The solicitation of any consent referred to in the preceding sentence shall be conducted by and at the expense of the Stockholders' Representative. The Principal Stockholders, each Stockholder and Optionholder that executes and delivers a Letter of Transmittal and each Earn Out Recipient shall be bound by all actions taken, exercises of rights, power or authority, and any decision or determination made taken by the Stockholders’ ' Representative consistent therewithwith this Section 2.12(a) in his, her or their capacity as the Stockholders' Representative, and neither Parent nor the Surviving Corporation shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power liable to any of the Stockholders or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable Earn Out Recipients for any actions action taken or omitted to be taken under by it in such reliance or for any action taken or omitted to be taken by the Stockholders' Representative.
(b) Any of the individuals constituting the Stockholders' Representative may resign at any time or be removed by the vote or written consent of Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights; provided however, that such resignation or removal shall not be effective until such time as a successor to such individual shall have been elected. In the event of the death, resignation or removal of any of the individuals who constitute the Stockholders' Representative, a successor shall be elected (and may be removed and replaced) by the remaining individuals who constitute the Stockholders' Representative; provided that if no such individuals remain, such successor shall be elected (and may be removed and replaced) by the vote or written consent of Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights at such time, such election (or removal and replacement) to become effective upon the written acceptance thereof by such new individual. Such election shall be conducted by the Earn Out Recipient who holds the greatest number of Earn Out Rights at such time who is willing to conduct the election, and shall be paid for by the Earn Out Recipients.
(c) In connection with this Agreement and any instrument, agreement or document relating hereto or thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders' Representative hereunder, the Stockholders' Representative shall incur no responsibility whatsoever to any Stockholder, Earn Out Recipient, or Bionics Trust by reason of any error in judgment or other act or omission performed or omitted hereunder or in connection with this Agreement or the transactions contemplated hereby any such other agreement, instrument or therebydocument, except excepting only responsibility for such actions taken any act or omitted failure to be taken resulting from Stockholders’ Representative’s act which represents gross negligence or willful misconduct. Each Earn Out Recipient and Bionics Trust shall indemnify the Stockholders' Representative against all Losses arising out of or in connection with any claim, investigation, challenge, action or proceeding or in connection with any appeal thereof, relating to the acts or omissions of the Stockholders' Representative hereunder. The Buyer shall Stockholders' Representative shall, at the expense of the Earn Out Recipients and Bionics Trust, be entitled to deal exclusively engage such counsel, experts and other agents and consultants as he or she shall deem necessary in connection with the Stockholders’ Representative on all matters relating to this Agreement, exercising his or her powers and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by performing his or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personher function hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints ▇by signing this Agreement, designates Roy ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive ▇▇ be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any and all determinations) which may be required or permitted act of any Stockholder, by this Agreement to be taken operation of law, whether by such Persons; Stockholder's death or any other event.
(iid) exercise such other rightsNotwithstanding the foregoing, power and authority, as are authorized, delegated and granted to the Stockholders’ ' Representative pursuant to this Agreement; shall inform each Stockholder of all notices received, and (iii) exercise such rightsof all actions, power decisions, notices and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ ' Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder act as directed by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Stockholders holding a majority interest in the Stockholders’ Representative Indemnity Escrow Property (as fully binding upon each such Persondefined in Section 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each Stockholder For purposes of payment due to the Stockholders, amendments, notice and other requirements under this Agreement and the Joint Escrow Account Agreement, the Stockholders hereby irrevocably authorizes, directs and appoints appoint Henry M. Pollak (the "Stockholders' Representative") to serve as their a▇▇. ▇▇ ▇▇▇ ▇▇▇▇▇ to act as sole ▇▇ey-in-fact with full power and exclusive representative authority (including power of substitution), in the name of and for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and each of the Stockholders, or in their own names as Stockholders' Representative, to take all determinations) which may be actions required or permitted under this Agreement and the Joint Escrow Account Agreement, including the giving and receiving of all service of process, reports, notices and consents and the signing of all certificates, notices, instructions and other documents and the making of all determinations thereunder. In the event Henry M. Pollack dies, becomes incapacitated or is otherwise unable to s▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ders' Representative, his successor shall be Samuel Marcus. In the event Samuel Marcus dies, becomes incapacitated or ▇▇ ▇▇▇▇▇▇▇▇▇ unable to serv▇ ▇▇ ▇▇▇▇▇▇▇▇ders' Representative, his successor shall be designated by a majority of the remaining Stockholders; PROVIDED, HOWEVER, if such person so designated as Stockholders' Representative is not a Stockholder, such person shall also be subject to the prior consent of G-R, such consent not to be unreasonably withheld. The authority conferred by this Agreement Section 10 shall be deemed an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to be termination by any of the Stockholders, or by operation of law, whether by the death or incapacity of any of the Stockholders, or the occurrence of any other event. If any of the Stockholders should die or become incapacitated, or if any other such event should occur, any action taken by the Stockholders' Representative shall be as valid as if such Persons; (ii) exercise death or incapacity, termination or other event had not occurred regardless or whether or not the Stockholders' Representative, AMT, G-R or any of the Stockholders shall have received notice of such death, incapacity, termination or other rights, power and authority, as are authorized, delegated and granted event. Any notice given to the Stockholders’ ' Representative pursuant to under this Agreement; and (iii) exercise such rights, power and authority as are incidental Agreement shall constitute effective notice to the foregoing. Any such actions taken, exercises of rights, power or authorityStockholders, and G-R may rely on any decision notice, consent, election or determination made by other communication received from the Stockholders’ ' Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally notice, consent, election or other communication had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that been received from each of the Stockholders’ Representative . G-R shall not be liable to the Stockholders for any actions action taken or omitted to be taken by the Stockholders' Representative under this Agreement or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Persontherewith.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder Seller hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative as such Seller’s representative and attorney-in-fact to (i) act on behalf of such Seller with respect to this Agreement after Closing and to take any and all actions (including, without limitation, executing and delivering make any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be decisions required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , including the exercise of the power to:
(i) give and receive notices and communications;
(ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.5;
(iii) exercise such rightsagree to, power negotiate, enter into settlements and authority as are incidental compromises of, and comply with orders of courts with respect to claims for indemnification made by Purchaser pursuant to Section VII and Section IX; (iv) litigate, arbitrate, resolve, settle or compromise any claim for indemnification pursuant to Section VII and Section IX;
(v) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Agreement;
(vi) make all elections or decisions contemplated by this Agreement and any Ancillary Agreement;
(vii) engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist Stockholders’ Representative in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in the good faith judgment of Stockholders’ Representative for the accomplishment of the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer Purchaser shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, Agreement (including Sections VII and IX) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder Seller by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Seller by Stockholders’ Representative, as being fully binding upon such Person by the Seller. Notices or communications to or from Stockholders’ Representative as fully shall constitute notice to or from each of the Sellers. Any decision or action by Stockholders’ Representative hereunder, including any agreement between Stockholders’ Representative and Purchaser relating to the defense, payment or settlement of any claims for indemnification hereunder, shall constitute a decision or action of all Sellers and shall be final, binding and conclusive upon each such PersonSeller. The provisions of this Section, including the power of attorney granted hereby, are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one Seller, or by operation of Law, whether by death or other event.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder Section 5.1 Stockholders Representative.
(a) The Stockholders Representative is hereby irrevocably authorizesappointed, directs authorized and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ empowered to act as sole the representative of the Company Stockholders for all purposes hereunder and for the benefit of the Company Stockholders, as the exclusive representative for such Stockholder (agent and attorney-in-fact to act on behalf of each of the “Company Stockholders’ Representative”) , in connection with and authorizes to facilitate the consummation of the Acquisition, which shall include the power, authority and directs the Stockholders’ Representative to discretion:
(i) to enter into amendments to this Agreement and to execute and deliver any Ancillary Agreements (with such modifications or changes therein as to which the Stockholders Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stockholders Representative, in its sole discretion, determines to be desirable, in each case, whether before or after the Closing;
(ii) to execute and deliver such waivers and consents in connection with this Agreement and any Ancillary Agreements and the consummation of the Merger as the Stockholders Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of the Company Stockholders (including the Stockholders Representative, in his capacity as a Company Stockholder) and to enforce and protect the rights and interests of the Stockholders Representative arising out of or under or in any manner relating to this Agreement, and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein, including the Ancillary Agreements, and to take any and all actions (including, without limitation, executing which the Stockholders Representative believes are necessary or appropriate under this Agreement for and delivering any documents, incurring any costs and expenses on behalf of the Company Stockholders, including asserting or pursuing any Claim against Purchaser, Subco, Mergeco or any of their Affiliates or Representatives, consenting to, compromising or settling any such Claims, conducting negotiations with Purchaser, Subco, Mergeco or any of their Affiliates and Representatives, regarding such Claims, and, in connection therewith, to: (A) assert or institute any Claim; (B) investigate, defend, contest or litigate any Claim initiated by Purchaser, Subco, Mergeco or any other Person, or by any federal, state or local Governmental Authority against the Stockholders Representative or against all Company Stockholders, and receive process on behalf of any or all such Company Stockholders in any such Claim 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; (C) file any proofs of debt, claims and petitions as the Stockholders Representative may deem advisable or necessary; and (D) file and prosecute appeals from any decision, judgment or award rendered in any such Claim, it being understood that the Stockholders Representative shall not (x) have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions and (y) shall not have the authority to investigate, defend, contest or litigate any Claim (or compromise or settlement thereof) made against one or more Company Stockholders that is not made against all such Persons;
(iv) to refrain from enforcing any right of the Company Stockholders or the Stockholders Representative arising out of or under or in any manner relating to this Agreement, or any other agreement, instrument or document in connection with the foregoing; 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 such Company Stockholder unless such waiver is in writing signed by the waiving party or by the Stockholders Representative;
(v) to make, execute, acknowledge and making 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 determinationsthings 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 implement the Merger, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith; and
(vi) which may be required or permitted by this Agreement to be taken by engage such counsel, experts and other agents and consultants as it shall deem necessary in connection with exercising its powers and performing its function hereunder and (in the absence of bad faith on the part of the Stockholders Representative) to conclusively rely on the opinions and advice of such Persons; .
(iib) exercise such other rightsThis Article 5 and all of the indemnities, power immunities and authority, as are authorized, delegated and powers granted to the Stockholders’ Stockholders Representative pursuant hereunder and under this Agreement shall survive the Closing Date or any termination of this Agreement in accordance with its terms.
(c) Except as provided for herein, Purchaser, Subco and Mergeco shall have the right to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any rely upon all actions taken or omitted to be taken under or in connection with by the Stockholders Representative pursuant to this Agreement and any Ancillary Agreement, as applicable, all of which actions or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer omissions shall be entitled to deal exclusively legally binding upon the Company Stockholders.
(d) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the Stockholders’ death, incompetency, bankruptcy or liquidation of any Company Stockholder, and (ii) shall survive the consummation of the Merger.
(e) Upon the written request of any Company Stockholder, the Stockholders Representative on shall provide such Person with an accounting of all matters relating to this Agreementmonies or proceeds (including the Payment Shares and Earn-Out Shares) received and distributed by the Stockholders Representative, in its capacity as the Stockholders Representative, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by provide such Person with such other reasonable information regarding the Stockholders’ Stockholders Representative’s actions and its other costs and expenses, in its capacity as the Stockholders Representative, and on any other action taken or purported to be taken on behalf of any as such Person by the Stockholders’ Representative as fully binding upon each such Personmay reasonably request.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. Each Stockholder hereby (a) The Indemnifying Persons, by approving this Agreement and the transactions contemplated hereby, irrevocably authorizes, directs agree to appoint and appoints constitute ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ to act (and by the execution of this Agreement as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”, ▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accept of his appointment) for and authorizes on behalf of the Indemnifying Persons as the true, exclusive and directs lawful agents and attorney-in-fact for and on behalf of each such Indemnifying Person to act: (i) as Stockholders’ Representative under this Agreement and the Paying Agent Agreement, and to have the right, power and authority to perform all actions (or refrain from taking any actions) the Stockholders’ Representative to (i) take any shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement, the Paying Agent Agreement and all actions (including, without limitation, executing the Escrow Agent Agreement and delivering any documents, incurring any costs the transactions contemplated hereby and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Personsthereby; (ii) exercise in the name, place and stead of each Company Stockholders (A) in connection with the Merger and the transactions contemplated by this Agreement and in accordance with the terms and provisions of this Agreement, and (B) in any proceeding involving this Agreement, to do, or refrain from doing, all such other rightsfurther acts and things, power necessary, appropriate or advisable in connection with any of the foregoing, including execute and authority, deliver all such documents as are authorized, delegated and granted to the Stockholders’ Representative shall deem necessary or appropriate in connection with the Merger, including this Agreement or agreeing to any modification or amendment of this Agreement in accordance with Section 9.10 hereof, the Paying Agent Agreement or the Escrow Agent Agreement and executing and delivering an agreement of such modification or amendment. Without derogating from the generality of the foregoing, as of the date hereof the Stockholders’ Representative shall have the right, power and authority to: (i) give and receive notices and communications, executed by the Stockholders’ Representative (ii) authorize delivery to Parent Indemnitees of the applicable portion of the Aggregate Merger Consideration or supplemental indemnification amounts, if any, in satisfaction of claims by Indemnified Parties, (iii) object to such deliveries, (iv) agree to, negotiate, defend, resolve, enter into settlements and compromises of, any suit, proceeding, claim or dispute under this Agreement, the Paying Agent Agreement or the Escrow Agent Agreement on behalf of the Indemnifying Persons and comply with orders of courts and awards of arbitrators with respect to such claims, (v) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of this Agreement, the Paying Agent Agreement and the Escrow Agent Agreement, (vi) retain legal counsel, accountants, consultants, advisors and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby; (vii) apply the Rep Reimbursement Amount to the payment of (or reimbursement of the Stockholders’ Representative for) expenses and liabilities which the Stockholders’ Representative may incur pursuant to this Agreement; and (iiiviii) exercise such rights, power and authority as are incidental to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of any or all of the foregoing. The identity of the Stockholders’ Representative may be changed by the holders of a majority of the Proportionate Indemnification Share (the “Majority Holders”) from time to time upon not less than fifteen (15) days’ prior written notice to all of the Indemnifying Persons and to Buyer and Parent. The Stockholders’ Representative may resign from his position by providing a 15-day prior written notice to the Indemnifying Persons and in such case, or in the case of death, disability, or inability of the Stockholders’ Representative, the Majority Holders shall, within fifteen (15) days from such event, appoint a replacement Stockholders’ Representative and notify Parent. No bond shall be required of the Stockholders’ Representative and the Stockholders’ Representative shall receive no compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Indemnifying Persons. Any such actions takenand all decisions, exercises acts, consents or instructions made or given by the Stockholders’ Representative in connection with this Agreement, the Paying Agent Agreement or the Escrow Agent Agreement shall constitute a decision of rightsall the Company Stockholders and shall be final, power or authoritybinding and conclusive upon each and every Company Stockholder, and the Parent shall be entitled to rely upon any decision such decision, act, consent or determination instruction of the Stockholders’ Representative provided that in the event that there are more than one Person performing the role of the Stockholders’ Representative such decision, act, consent or instruction are evidenced by a document jointly executed by both Representatives. This power of attorney is coupled with an interest and is irrevocable.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from any Rep Reimbursement Amounts retained on behalf of the Stockholders’ Representative for any and all expenses, charges and liabilities, including reasonable attorneys’ fees, incurred by the Stockholders’ Representative in the performance or discharge of its rights and obligations under this Agreement (the “Rep Expenses”). The Rep Reimbursement Amount shall only be used for the payment of the Rep Expenses or as otherwise required by this Agreement. The Stockholders’ Representative will not be required to take any action involving any expense unless the payment of such expense is made or provided for in a manner satisfactory to him. The Company Stockholders shall be responsible for and shall, jointly and severally, on a pro rata basis based on their Proportionate Indemnification Share, reimburse the Stockholders’ Representative or any member thereof upon demand for all reasonable expenses, disbursements and advances incurred or made by the Stockholders’ Representative consistent in accordance with any of the provisions of this Agreement, the Paying Agent Agreement, the Escrow Agent Agreement or any other documents executed in connection herewith or therewith, including the costs and expense of receiving advice of counsel according to this Agreement, the Paying Agent Agreement and the Escrow Agent Agreement. Any of the Rep Reimbursement Amount deposited with the Escrow Agent that has not been consumed by the Stockholders’ Representative pursuant to the terms of this Agreement on or prior to the end of the period in which Parent may make claims for indemnification pursuant to Article VIII or, if later, the date on which all indemnification claims of Parent outstanding at the end of such period have been discharged in full, shall be absolutely distributed by the Escrow Agent to the Company Stockholders on a proportionate basis based on the Proportionate Indemnification Share.
(c) The Stockholders’ Representative will not incur any liability with respect to any action taken or suffered by him in reliance upon any notice, direction, instruction, consent, statement or other document believed by him, her or it to be genuine and irrevocably binding to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except his own willful misconduct or gross negligence. In all questions arising under this Agreement, the Paying Agent Agreement or the Escrow Agent Agreement, the Stockholders’ Representative may rely on each the advice of counsel, and the Stockholders’ Representative will not be liable to the Company Stockholder for anything done, omitted or suffered by the Stockholders’ Representative based on such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacityadvice. Each Company Stockholder agrees that hereby releases the Stockholders’ Representative from any loss (including any losses incurred, as such losses are incurred), liability or expense for, arising out of or in connection with the acceptance or administration of the Stockholders' Representative’s duties hereunder or any action taken or not taken by any of them, her or it in his, her or its capacity as such agent (including the legal costs and expenses of defending the Stockholders’ Representative against any claim or liability (and all actions, claims, proceedings and investigations in respect thereof) in connection with, caused by or arising out of, directly or indirectly, the performance of the Stockholders' Representative’s duties hereunder), except for the liability of the Stockholders' Representative to a Company Stockholder for loss which such holder will suffer from the willful misconduct of the Stockholders' Representative in carrying out their duties hereunder. In addition, and without derogating from the generality of the foregoing, the Indemnifying Persons shall severally and jointly, indemnify the Stockholders’ Representative and hold him harmless against any loss (including any losses incurred, as such losses are incurred), liability or expense for, arising out of or in connection with the acceptance or administration of the Stockholders' Representative’s duties hereunder or any action taken or not taken by any of them, her or it in his, her or its capacity as such agent (including the legal costs and expenses of defending the Stockholders’ Representative against any claim or liability (and all actions, claims, proceedings and investigations in respect thereof) in connection with, caused by or arising out of, directly or indirectly, the performance of the Stockholders’ Representative’s duties hereunder), except for the liability of the Stockholders’ Representative to a Company Stockholder for loss which such holder will suffer from the gross negligence or willful misconduct of the Stockholders’ Representative in carrying out their duties hereunder.
(d) The Stockholders’ Representative shall treat confidentially and, subject to any Legal Requirement, not disclose any nonpublic information from or about the Company (as the Surviving Entity) or Parent to anyone (except on a need to know basis to individuals (identified to the Company and Parent in writing in advance) who agree in writing to treat such information confidentially)
(e) Subject to the provisions of this Section 8.12, a decision, act, consent or instruction of the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or constitute a decision of all of the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, Indemnifying Persons and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representativefinal, binding and conclusive upon each and every Indemnifying Person, and on the other Parties may rely upon any other action taken decision, act, consent or purported to be taken on behalf instruction of any such Person by the Stockholders’ Representative as fully binding upon being the decision, act, consent or instruction of each and every Indemnifying Person. Each of Parent and Buyer is hereby relieved from any liability to any Person for any acts done by them in accordance with such Persondecision, act, consent or instruction of the Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Attunity LTD)
Stockholders’ Representative. Each Stockholder (a) The Selling Stockholders hereby irrevocably authorizesappoint YEONGYI (Asia) Co., directs Ltd. as their agent and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder attorney-in-fact (the “Stockholders’ Representative”) for all purposes under this Agreement, including for purposes of Article 9, and authorizes and directs consent to the Stockholders’ Representative to taking by the YEONGYI (iAsia) take Co., Ltd. of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders’ Representative, the EYON Stockholders as a group or the Selling Stockholders as a group (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of where such Stockholder and making any and all determinations) which may be group action is required or permitted by this Agreement) under this Agreement to be taken by such Persons(including executing and delivering the Related Agreements on behalf of the Selling Stockholders, delivering any consents, waivers or certifications and making any necessary filings); (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the taking of all actions necessary or desirable in the judgment of the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to for the accomplishment of the foregoing. Any such actions taken, exercises of rights, power or authority, The Selling Stockholders hereby acknowledge and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees agree that the Stockholders’ Representative shall not be liable for any actions taken or omitted has the authority to be taken under or in connection with execute and deliver this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from on their behalf. The Stockholders’ Representative’s willful misconductRepresentative hereby accepts its appointment as the agent and attorney-in-fact for all purposes under this Agreement, including for purposes of Article 9, of the Selling Stockholders. The Buyer Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, including for purposes of Article 9, and a decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all the Selling Stockholders, and shall be final, binding and conclusive upon each of the Selling Stockholders, and the Parent and the Company may rely upon any decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and all of the Selling Stockholders. The Parent and the Company are relieved from any liability to any Selling Stockholder or any other Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders’ Representative
(b) The Stockholders’ Representative shall be entitled to rely conclusively (upon any order, judgment, certificate, demand, notice, instrument or other writing delivered to it hereunder without further evidence of any kind whatsoever) on any document executed by being required to investigate the validity, accuracy or purported to be executed on behalf of any Stockholder by content thereof nor shall the Stockholders’ RepresentativeRepresentative 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 on any other action taken for anything done, omitted or purported to be taken on behalf of any such Person suffered in good faith by the Stockholders’ Representative as fully binding upon each based on such Personadvice, the Stockholders’ Representative shall not be liable to anyone.
Appears in 1 contract
Sources: Stock Purchase Agreement (Optical Communication Products Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ (a) In order to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to administer efficiently (i) the determination of the amount of any Adjustment, (ii) waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby, (iii) determination of any amount that the Buyer is entitled to recover pursuant to Section 6 hereof, and (iv) any rights or obligations of the Selling Stockholders pursuant to the Stock Purchase Agreements or the Escrow Agreement, the Stockholder hereby designates Hisanori Aoyama as his, her or its representative (the "Stockholders' Representative").
(b) The Stockholder hereby authorizes the Stockholders' Representative (i) to make all decisions relating to the determination of the amount of any Adjustment, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby, (iii) to make all decisions relating to the determination of any amount that the Buyer is entitled to recover pursuant to Section 6 hereof, (iv) to give and receive all notices required to be given under this Agreement, and (v) to take any and all actions (includingadditional action as is contemplated, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf permitted or required by the terms of such Stockholder and making any and all determinations) which may be required this Agreement or permitted by this the Escrow Agreement to be taken by or on behalf of the Stockholder.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such Persons; position, the Majority Stockholders (or their respective successors, heirs or executors) shall, in accordance with the Majority Stock Purchase Agreement, promptly select another representative. The Stockholder agrees that any such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Representative shall be binding upon the Stockholder, and the Stockholder shall not have the right to object, dissent, protest or otherwise contest the same.
(e) By execution of this Agreement, the Stockholder agrees to all of the following matters:
(i) the Buyer and its affiliates shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any of the matters described in this Section 1.6, and the Stockholder shall not have any claim against the Buyer or any of its affiliates for any action taken by the Buyer or any of its affiliates in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to this Agreement; shall be conclusive and (iii) exercise such rightsbinding upon the Stockholder, power and authority as are incidental to the foregoing. Any such actions Stockholder shall not have any claim against the Stockholders' Representative for any action taken, exercises of rights, power decision made or authority, and any decision or determination made instruction given by the Stockholders’ ' Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or therebyEscrow Agreement;
(iii) the provisions of this Section 1.6 are independent and severable, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively are irrevocable and coupled with the Stockholders’ Representative on all matters relating to this Agreement, an interest and shall be entitled enforceable independently and separately from any rights or remedies that the Stockholder may have in connection with the transactions contemplated by this Agreement;
(iv) money damages for any breach of the provisions of this Section 1.6 would be inadequate;
(v) the provisions of this Section 1.6 shall be binding upon the executors, heirs, legal representatives and successors of the Stockholder, and any references in this Agreement to rely conclusively the Stockholder shall include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and
(without further evidence of any kind whatsoevervi) on any document executed by or purported the Stockholders' Representative shall have the authority to be executed execute and deliver on behalf of the Stockholder the Escrow Agreement and any Stockholder other agreements, certificates and instruments contemplated by this Agreement or necessary or appropriate to facilitate the Closing.
(f) All fees of and expenses incurred by the Stockholders’ Representative' Representative shall be paid by the Selling Stockholders, and on any other action taken the Stockholder shall pay the amount of such fees and expenses reasonably allocated to him, her or purported to be taken on behalf of any such Person it by the Stockholders’ Representative as fully binding upon each such Person' Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. Each Stockholder The Sellers (by virtue of their execution of this Agreement) hereby irrevocably authorizes, directs constitute and appoints appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to act as sole the agent and exclusive representative for such Stockholder true and lawful attorney in fact of the Sellers (the “Stockholders’ Representative”) ), to act in the name, place and authorizes stead of the Sellers for purposes of executing any documents and directs taking any actions that the Stockholders’ Representative may, in his their discretion, determine to (i) take be necessary, desirable or appropriate in connection with all matters relating to the Second Payment, Third Payment, and Final Payment and the Closings under Article 1 and Article 5 and any claim for indemnification under Section 7. The Stockholders’ Representative shall act by majority vote on all matters. All expenses incurred by the Stockholders’ Representative in connection with the performance of his duties as Stockholders’ Representative shall paid exclusively from the Second Payment, Third Payment, and all actions (includingFinal Payment, without limitation, executing and delivering the Stockholders’ Representative shall be entitled to recover any documents, incurring any out-of-pocket costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted reasonably incurred by this Agreement to be the Stockholders’ Representative in connection with actions taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; Agreement (including the hiring of legal counsel and (iiithe incurring of legal fees and costs) exercise such rightsfrom the Second Payment, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authorityThird Payment, and any decision or determination made by Final Payment (and the Stockholders’ Representative consistent therewithis authorized to direct Purchaser to make such payments from the Second Payment, shall be absolutely Third Payment, and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacityFinal Payment). Each Stockholder agrees All parties to this Agreement acknowledge that the Stockholders’ Representative shall not be liable for any actions taken or omitted is permitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted engage ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as counsel to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence waives any conflict of any kind whatsoever) on any document executed by or purported to be executed on behalf interest that may arise as a result of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personengagement.
Appears in 1 contract
Stockholders’ Representative. Each (a) In order to administer efficiently (i) the implementation of the Agreement by the Stockholder, (ii) the waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby, and (iii) the settlement of any dispute with respect to the Agreement, the Stockholder hereby irrevocably authorizes, directs and appoints designates Jame▇ ▇. ▇▇. ▇▇▇▇ ▇▇ its representative (the "Stockholder's Representative").
(b) The Stockholder hereby authorizes the Stockholder's Representative (i) to take all action necessary in connection with the implementation of the Agreement on behalf of the Stockholder, the waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby, or the settlement of any dispute, (ii) to give and receive all notices required to be given under the Agreement and (iii) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholder by the terms of this Agreement, including without limitation, the execution and delivery of documents to transfer the Company Shares to Buyer.
(c) In the event that the Stockholder's Representative dies, becomes legally incapacitated or resigns from such position, Chri▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ll fill such vacancy and shall be deemed to act as sole be the Stockholder's Representative for all purposes of this Agreement; however, no change in the Stockholder's Representative shall be effective until Buyer is given notice of it by the Stockholder.
(d) All decisions and exclusive representative for such actions by the Stockholder's Representative shall be binding upon the Stockholder, and the Stockholder shall have no right to object, dissent, protest or otherwise contest the same.
(e) By execution of this Agreement, the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to Stockholder agrees that:
(i) take Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholder's Representative as to any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; the Stockholder or the Stockholder's Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Stockholder's Representative;
(ii) exercise such other rightsall actions, power decisions and authorityinstructions of the Stockholder's Representative shall be conclusive and binding upon the Stockholder and the Stockholder shall not have any cause of action against the Stockholder's Representative for any action taken, as are authorized, delegated and granted to decision made or instruction given by the Stockholders’ Stockholder's Representative pursuant to under this Agreement; and , except for fraud or willful breach of this Agreement by the Stockholder's Representative;
(iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable remedies available at law for any actions taken or omitted to be taken under or in connection with breach of the provisions of this Agreement or the transactions contemplated hereby or therebySection 1.5 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively temporary and permanent injunctive relief without the necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.5; and
(iv) the 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 the Stockholders’ Stockholder to the Stockholder's Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively binding upon the executors, heirs, legal representatives and successors of the Stockholder.
(without further evidence of any kind whatsoeverf) on any document executed by or purported to be executed on behalf of any Stockholder All fees and expenses incurred by the Stockholders’ Representative, and on any other action taken or purported to Stockholder's Representative shall be taken on behalf of any such Person paid by the Stockholders’ Representative as fully binding upon each such PersonStockholder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Stockholders’ Representative. Each For the purpose of this Section 10.17, the term “Stockholder” shall be deemed to refer to the Indemnifying Stockholders. The parties acknowledge that:
(a) Effective upon the approval of this Agreement and the transactions contemplated hereby, and without further act of any Stockholder, by virtue of executing the Stockholders Written Consent and/or a Letter of Transmittal and/or any other agreement with the Company or by virtue of receiving any portion of the Distributable Proceeds, each Stockholder hereby shall have irrevocably authorizes, directs and appoints appointed ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ to act together as sole agent and exclusive representative attorney-in-fact for such Stockholder and on behalf of the Indemnifying Stockholders (the “Stockholders’ ' Representative”) for each such Stockholder (except such Stockholders, if any, as shall have perfected their appraisal or dissenters’ rights under applicable Law), and each such Stockholder authorizes and directs the Stockholders’ ' Representative acting for such Stockholder and in such Stockholder’s name, place and stead, in any and all capacities to do and perform every act and thing required, permitted, necessary or desirable to be done as of the Closing in connection with the transactions contemplated by the Transaction Documents, as fully to all intents and purposes as such Stockholder might or could do in person, including to:
(i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder the Stockholders) and making make any and all determinations) determinations which may be required or permitted by in connection with the post-Closing implementation of this Agreement to be taken by such Persons; and related agreements and the transactions contemplated hereby and thereby;
(ii) exercise such other rights, power give and authority, as are authorized, delegated receive notices and granted to the Stockholders’ Representative pursuant to this Agreement; and communications thereunder;
(iii) negotiate, defend, settle, compromise and otherwise handle and resolve any and all claims and disputes with the Parent and any other Parent Indemnified Parties arising out of or in respect of the Transaction Documents, including, claims and disputes pursuant to Article VII of this Agreement;
(iv) authorize release of amounts from the Escrow Fund in satisfaction of claims made by the Parent Indemnified Parties thereunder;
(v) enter into the Escrow Agreement and act pursuant thereto;
(vi) enter into any waiver or amendment of the Escrow Agreement or this Agreement after the Closing;
(vii) retain legal counsel, accountants, consultants and other experts, and incur any other reasonable expenses, in connection with all matters and things set forth or necessary with respect to the Transaction Documents and the transactions contemplated hereby and thereby; and
(viii) make any other decision or election or exercise such rights, power and authority as are incidental to the foregoing.
(b) Notwithstanding the foregoing:
(i) with respect to any amendment to this Agreement or the Escrow Agreement attached hereto, as between the Stockholders and the Stockholders' Representative, the Stockholders' Representative shall obtain the prior written (including email) approval of Stockholders who held, immediately prior to the Closing, more than fifty percent (50%) of the issued and outstanding Company Shares (on an as converted basis), prior to entering into such amendment;
(ii) with respect to any matter which relates to a specific Stockholder, or which would treat a Stockholder materially and adversely different then the other Stockholders hereunder, including a claim for indemnification from a specific Stockholder, as between such Stockholder and the Stockholders' Representative, the Stockholders' Representative shall not take any action on account of such Stockholder relating to such matter, without the prior written (including email) consent of such Stockholder. Such Stockholder shall be entitled to appoint a representative on behalf of itself to act as its representative hereunder solely with respect to such matter and without affecting any of the other Stockholders, in which case the Stockholder's Representative shall be relieved from any obligation hereunder in respect to such matters.
(c) Each of the Indemnifying Stockholders acknowledges and agrees that as of the Closing, upon any delivery by the Stockholders' Representative of any waiver, amendment, agreement, opinion, certificate or other document executed by the Stockholders' Representative, such Stockholder shall be bound by such documents as fully as if such Stockholder had executed and delivered such documents.
(d) Upon the death, disability or incapacity of the initial Stockholders' Representative appointed pursuant to 10.17(a), each of the Stockholders acknowledge and agree that such Person as is appointed by the Stockholders who held a majority of 2/3 of the outstanding Company Shares immediately prior to the Closing (on an as-converted basis) shall serve as the new stockholders' representative; provided that no change in the Stockholders' Representative shall be effective prior to the delivery to the Parent of written notice thereof from the Stockholders who held a majority of 2/3 of the Company Shares (on an as-converted basis) immediately prior to the Closing. The Stockholders' Representative may resign at any time; provided that it must provide the Stockholders who held a majority of the Company Shares (on an as-converted basis) immediately prior to Closing thirty (30) days’ prior written notice of such decision to resign. Except as expressly permitted hereunder, the Stockholders' Representative shall not receive compensation for service in such capacity.
(e) Any such and all actions taken or not taken, exercises of rights, power or authority, authority and any decision or determination made by the Stockholders’ ' Representative consistent therewith, in connection herewith shall be absolutely and irrevocably binding on each such Person upon the Indemnifying Stockholders as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in its individual capacity, and the Escrow Agent and the Parent may rely upon such action, exercise of right, power, or authority or such decision or determination of the Stockholders' Representative as the action, exercise, right, power, or authority, or decision or determination of such Person’s capacity, and no Indemnifying Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Parent and its Affiliates (including after the Effective Time, the Surviving Corporation) are hereby relieved from any liability to any Person for any acts done by the Stockholders' Representative and any acts done by the Parent or its Affiliates (including after the Effective Time, the Surviving Corporation) in accordance with any decision, act, consent or instruction of the Stockholders' Representative.
(f) Each Indemnifying Stockholder agrees shall severally and not jointly indemnify (based on its pro-rated Allocable Portion of the Distributable Proceeds paid hereunder to each Stockholder) and hold harmless the Stockholders' Representative and its successors, permitted assigns, Affiliates, directors, officers, employees and agents (collectively, “Stockholders' Representative Indemnitees”) against all Losses incurred or sustained by the Stockholders' Representative Indemnitee in connection with any Action to which the Stockholders' Representative Indemnitee is made a party by reason of any act or omission in connection with its role as the Stockholders' Representative or its relationship to the Stockholders' Representative, except for fraud or willful misconduct. In the event that the Stockholders’ ' Representative shall not be liable for determines that any actions taken expense or omitted to be taken under payment is appropriate or desirable in connection with this Agreement the exercise of its duties as Stockholders' Representative or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively otherwise in connection with the protection of the rights of 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 by or purported to be executed on behalf of any then each Stockholder shall, in accordance with instructions provided by the Stockholders’ ' Representative, and on any other action taken provide its pro-rata portion of such payment or purported to be taken on behalf of any such Person expense (determined by the pro-rated Allocable Portion of the Distributable Proceeds paid hereunder to each Stockholder).
(g) The parties agree that an amount of $10,000 of the proceeds paid by the Parent (though the Paying Agent) at the Effective time shall be paid to the Stockholders’ ' Representative as fully binding upon each such Persona non refundable advance for reimbursement of the costs and expenses incurred by him in connection with performance of his duties ("Stockholders' Representative Fund").
Appears in 1 contract
Sources: Merger Agreement (Nice Systems LTD)
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints by signing this Agreement, designates Davi▇ ▇▇. ▇▇▇▇ (▇▇, in the event that Davi▇ ▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, Rich▇▇▇ ▇▇▇▇▇▇▇▇▇▇) ▇▇ to act as sole and exclusive be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other 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) Notwithstanding the foregoing, the Stockholder Representative shall inform each Stockholder of all notices received, and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsactions, power decisions, notices and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ Stockholder Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder act as directed by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Stockholders holding a majority interest in the Stockholders’ Representative Escrow Property (as fully binding upon each such Persondefined in Section 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer (i) the determination of the Net Current Assets and the Adjusted Purchase Price, (ii) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify Open Solutions and the Buyer pursuant to Section 7 hereof, the Stockholders hereby irrevocably authorizes, directs and appoints designate ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to make all decisions relating to the determination of the Net Current Assets and the Adjusted Purchase Price, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify Open Solutions or the Buyer pursuant to Section 7 hereof, (iii) to give and receive all notices required to be given under the Agreement, and (iv) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy and such substituted representative shall be deemed to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs be the Stockholders’ ' Representative for all purposes of this Agreement. In the event that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dies, becomes unable to perform his responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Closing, a majority of the Shares as set forth on Schedule I attached hereto shall select another representative and such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement.
(id) take any All decisions and all actions (by the Stockholders' Representative, including, without limitation, executing any agreement between the Stockholders' Representative and delivering Open Solutions relating to the determination of the Net Current Assets or the Adjusted Purchase Price, or the defense or settlement of any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) claims for which the Stockholders may be required to indemnify Open Solutions or permitted the Buyer pursuant to Section 7 hereof, shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) Open Solutions and the Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to the determination of the Net Current Assets or the Adjusted Purchase Price, or the settlement of any claims for indemnification by this Agreement the Buyer pursuant to Section 7 hereof or any other actions required to be taken by such Persons; the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Open Solutions or the Buyer for any action taken by Open Solutions or the Buyer in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon 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; and , except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) exercise such rightsthe provisions of this Section 1.07 are independent and severable, power are irrevocable and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, coupled with an interest and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power enforceable notwithstanding any rights or authority or made such decision or determination in such Person’s capacity. Each remedies that any Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or may have in connection with this Agreement or the transactions contemplated hereby or therebyby this Agreement;
(iv) remedies available at law for any breach of the provisions of this Section 1.07 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Open Solutions and the Buyer shall be entitled to deal exclusively with temporary and permanent injunctive relief without the necessity of proving damages if Open Solutions or the Buyer brings an action to enforce the provisions of this Section 1.07; and
(v) the provisions of this Section 1.07 shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholders’ Representative on all matters relating ' rights hereunder, whether pursuant to this Agreementtestamentary disposition, the laws of descent and shall be entitled to rely conclusively distribution or otherwise.
(without further evidence of any kind whatsoeverf) on any document executed by or purported to be executed on behalf of any Stockholder Any fees and expenses incurred by the Stockholders’ Representative, and on any other action taken or purported to ' Representative shall be taken on behalf of any such Person paid by the Stockholders’ Representative Stockholders in proportion to their ownership of Shares as fully binding upon each such Personset forth on Schedule I attached hereto.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) The Key Stockholders (by virtue of their execution of this Agreement) and the other Non-Dissenting Stockholders (by virtue of the approval of the Merger and the adoption of this Agreement) hereby irrevocably authorizesnominate, directs constitute and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act appoint Insight as sole the agent and exclusive representative for such Stockholder true and lawful attorney-in-fact of the Non-Dissenting Stockholders (the “Stockholders’ Representative”) ), with full power of substitution, to act in the name, place and authorizes stead of the Non-Dissenting Stockholders for purposes of executing any documents and directs taking any actions that the Stockholders’ Representative to (i) take any and all actions (includingmay, without limitationin its sole discretion, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement determine to be taken necessary, desirable or appropriate in all matters relating to or arising out of this Agreement, including in connection with any claim for indemnification, compensation or reimbursement under Section 10 or under the Escrow Agreement. Insight hereby accepts its appointment as the Stockholders’ Representative.
(b) The Key Stockholders (by such Persons; virtue of their execution of this Agreement) and the other Non-Dissenting Stockholders (iiby virtue of the approval of the Merger and the adoption of this Agreement) exercise such other rights, power and authority, as are authorized, delegated and granted grant to the Stockholders’ Representative pursuant full authority to this Agreement; execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (iiiin the name of any or all of the Non-Dissenting Stockholders or otherwise) exercise such rights, power any and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees all documents that the Stockholders’ Representative shall not be liable for any actions taken or omitted may, in its sole discretion, determine to be taken under 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 11.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with this Agreement or the transactions contemplated hereby or therebyContemplated Transactions, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Section 10 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Non-Dissenting Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person Non-Dissenting Stockholder by the Stockholders’ Representative Representative, as fully binding upon such Non-Dissenting Stockholder.
(c) The power of attorney granted in Section 11.1(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 of the Non-Dissenting Stockholders.
(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 Key Stockholder or other Non-Dissenting Stockholder 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 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 Personadvice shall not subject the Stockholders’ Representative to liability to any Non-Dissenting Stockholder. The Key Stockholders and the Non-Dissenting Stockholders shall jointly and severally indemnify the Stockholders’ Representative and hold it 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 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.
(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 11.1 or cease to function in its capacity as Stockholders’ Representative for any reason whatsoever, then the Key Stockholders 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 11.1(d). Any such successor shall
Appears in 1 contract
Stockholders’ Representative. Each (a) By execution hereof, each Stockholder hereby irrevocably authorizes, directs constitutes and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act the Company as sole and exclusive the their representative for such Stockholder (the “StockholdersShareholders’ Representative”) hereunder to act as agent and authorizes attorney-in-fact for and directs on such Shareholder’s behalf regarding any matter under this Agreement or otherwise relating to the Stockholders’ Representative to Contemplated Transactions, including: (i) take delivering and receiving notices, including service of process, with respect to any and all actions matter under this Agreement; (including, without limitation, ii) executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder all documents and making taking any and all determinations) which may such actions as shall be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholdersof Shareholders’ Representative pursuant to this Agreement; and (iii) exercise such rightsproviding notice of, power demanding, pursuing or enforcing, in its discretion, any claim against any Party or a breach of this Agreement; (iv) taking, in its discretion, any and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authorityall actions, and delivering and receiving any decision and all notices hereunder, in respect of or determination made in connection with any claim for losses; (v) executing and delivering, on behalf of Shareholder, any contract, agreement, amendment or other document or certificate, including any settlement agreement or release of claims, to effectuate any of the foregoing or as may otherwise be specifically permitted by this Agreement, any such contract, agreement, amendment or other document or certificate to have the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably effect of binding on each such Person the Shareholder as if each Shareholder, as applicable, had personally entered into such Person personally had taken agreement; (vi) taking all such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholdersother actions as Shareholders’ Representative shall deem necessary or appropriate, in its discretion, for the accomplishment of the foregoing, including any waivers as set forth in Section 11.3; and (vii) engaging such attorneys, accountants, consultants and other Persons as Shareholders’ Representative, in its discretion, deems necessary or appropriate to accomplish any action required or permitted of it hereunder.
(b) Shareholders’ Representative will not be liable for any actions act taken or omitted to be taken under or as Shareholders’ Representative, while acting in connection with this Agreement or the transactions contemplated hereby or therebygood faith, except for such actions and any act taken or omitted to be taken resulting from Stockholderspursuant to the advice of counsel will be conclusive evidence of such good faith. Shareholders’ Representative’s willful misconduct. The Buyer Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to Shareholders’ Representative by any Shareholder, Buyer or any third party or any other evidence deemed by Shareholders’ Representative to be reliable, and Shareholders’ Representative shall be entitled to act on the advice of its selected counsel. Shareholders’ Representative shall be fully justified in failing or refusing to take any action under this Agreement or any related document or agreement if Shareholders’ Representative shall have received such advice or concurrence as it deems appropriate with respect to such inaction, or if Shareholders’ Representative shall not have been expressly indemnified to its satisfaction against any and all liability and expense that Shareholders’ Representative may incur by reason of taking or continuing to take any such action.
(c) The Parties are entitled to deal exclusively with the StockholdersShareholders’ Representative on all matters relating to this AgreementAgreement and the Related Agreements. A decision, act, consent or instruction of Shareholders’ Representative constitutes a decision of the Shareholder. Such decision, act, consent or instruction is final, binding and conclusive upon the Shareholders and all other Party’s may rely upon any decision, act, consent or instruction of Shareholders’ Representative. The appointment and power of attorney made in this Section 11.15 shall to the fullest extent permitted by applicable Laws be entitled deemed an agency coupled with an interest and all authority conferred hereby shall to rely conclusively (without further evidence the fullest extent permitted by Laws be irrevocable and not be subject to termination by operation of applicable Laws, whether by the death or incapacity or liquidation or dissolution of any kind whatsoever) on Shareholder or the occurrence of any document executed other event or events. Any action taken by or purported to be executed Shareholders’ Representative on behalf of the Shareholders pursuant to this Agreement shall be as valid as if any Stockholder by the Stockholderssuch death, incapacity, liquidation, dissolution or other event had not occurred, regardless of whether or not any Shareholder, Shareholders’ Representative, and on or any other action taken or purported to be taken on behalf related Person any Party shall have received notice of any such Person by the Stockholdersdeath, incapacity, liquidation, dissolution or other event. Notices or communications to or from Shareholders’ Representative as fully binding upon each such Personwill constitute notice to or from the Shareholders.
Appears in 1 contract
Sources: Share Purchase Agreement (BioSig Technologies, Inc.)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ (a) ▇▇▇▇▇ to act & Company, L.P. shall be constituted and appointed as sole agent and exclusive representative for such Stockholder attorney-in-fact (the “Stockholders’ Representative”) for and authorizes on behalf of the Sellers to give and directs receive notices and communications made pursuant to this Agreement, to pay on behalf of the Sellers expenses incidental to the preparation hereof and the carrying out by the Sellers of this Agreement and the consummation by the Sellers of the transactions contemplated hereby, to participate in the Closing on behalf of each of the Sellers, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf for the accomplishment of such Stockholder and making any and all determinations) which the foregoing. Such agency may be required or permitted changed from time to time upon not less than two Business Days’ prior written notice to the Buyer by the Sellers who as of the date of this Agreement to owned a majority in interest of the Shares. No bond shall be taken by such Persons; (ii) exercise such other rightsrequired of the Stockholders’ Representative, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant shall receive no compensation for his services. Notices or communications to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by from the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on constitute notice to or from each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that of the Sellers for purposes of this Agreement.
(b) The Stockholders’ Representative shall not be liable for any actions taken act done or omitted hereunder as Stockholders’ Representative while acting in good faith and not in a manner constituting gross negligence, and any act done or omitted pursuant to the advice of counsel shall be taken under conclusive evidence of such good faith. The Sellers shall severally indemnify the Stockholders’ Representative and hold him/her harmless against any Loss incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his/her duties hereunder.
(c) The execution and delivery by any Seller of this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted shall be deemed to be taken resulting from approval by such Seller of the terms of the provisions of this Section 11.15 and of the appointment of the Stockholders’ Representative’s willful misconduct.
(d) A decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all Sellers and shall be final, binding and conclusive upon each such Seller, and the Buyer may rely exclusively and conclusively upon any such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Seller. The Buyer is hereby relieved from any obligation to any Person for any acts done by it in accordance with such decision, act, consent or instruction of the Stockholders’ Representative. Except for a notice regarding the change of the Stockholders’ Representative (as contemplated by Section 11.15(a)), the Buyer shall be entitled to deal exclusively disregard any notices or communications given or made by the Sellers unless given or made through the Stockholders’ Representative. Each Seller releases, remises, and forever discharges the Buyer and its Affiliates, their respective representatives and insurers, and their respective successors and assigns, and each of them of and from any and all claims, demands, debts, accounts, covenants, agreements, obligations, costs, expenses, actions or causes of action of every nature, character or description, without limitation of law, equity or otherwise, to the extent based in whole or in part on Buyer’s reliance on the decisions, acts, consents and instructions of the Stockholders’ Representative as being the final, binding and conclusive act of all the Sellers.
(e) Any successor Stockholders’ Representative appointed in accordance with the Stockholders’ Representative on all matters relating to this Agreement, and Agreement shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative hereunder.
(f) Without limiting the generality of the foregoing, the execution and delivery by any Seller of this Agreement shall be deemed to be the authorization by such Seller of the Stockholders’ Representative to execute and deliver the Escrow Agreement on such Seller’s behalf, with such changes to the form of Escrow Agreement set forth in Exhibit F hereto as fully binding upon each such Person.the Buyer, Stockholders’ Representative and Escrow Agent may approve
Appears in 1 contract
Sources: Share Purchase Agreement
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ (a) In order to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to administer efficiently (i) waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby and (ii) any rights or obligations of the Selling Stockholders pursuant to the Stock Purchase Agreements, the Stockholder hereby designates Hisanori Aoyama as his, her or its representative (the "Stockholders' Representative").
(b) The Stockholder hereby authorizes the Stockholders' Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholder to consummate the transactions contemplated hereby, (ii) to give and receive all notices required to be given under this Agreement, and (iii) to take any and all actions (includingadditional action as is contemplated, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf permitted or required by the terms of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by or on behalf of the Stockholder.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such Persons; position, the Majority Stockholders (or their respective successors, heirs or executors) shall, in accordance with the Majority Stock Purchase Agreement, promptly select another representative. The Stockholder agrees that any such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Representative shall be binding upon the Stockholder, and the Stockholder shall not have the right to object, dissent, protest or otherwise contest the same.
(e) By execution of this Agreement, the Stockholder agrees to all of the following matters:
(i) the Buyer and its affiliates shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any of the matters described in this Section 1.5, and the Stockholder shall not have any claim against the Buyer or any of its affiliates for any action taken by the Buyer or any of its affiliates in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to shall be conclusive and binding upon the Stockholder, and the Stockholder shall not have any claim against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement; and ;
(iii) exercise such rightsthe provisions of this Section 1.5 are independent and severable, power are irrevocable and authority as are incidental to coupled with an interest and shall be enforceable independently and separately from any rights or remedies that the foregoing. Any such actions takenStockholder may have in connection with the transactions contemplated by this Agreement;
(iv) money damages for any breach of the provisions of this Section 1.5 would be inadequate;
(v) the provisions of this Section 1.5 shall be binding upon the executors, exercises heirs, legal representatives and successors of rights, power or authoritythe Stockholder, and any decision references in this Agreement to the Stockholder shall include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or determination made otherwise; and
(vi) the Stockholders' Representative shall have the authority to execute and deliver on behalf of the Stockholder any agreements, certificates and instruments contemplated by this Agreement or necessary or appropriate to facilitate the Closing.
(f) All fees of and expenses incurred by the Stockholders’ ' Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that paid by the Selling Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and the Stockholder shall be entitled pay the amount of such fees and expenses reasonably allocated to rely conclusively (without further evidence of any kind whatsoever) on any document executed by him, her or purported to be executed on behalf of any Stockholder it by the Stockholders’ ' Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. Each Stockholder Ni, Zhou Min is hereby irrevocably authorizes, directs appointed as agent and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder attorney-in-fact (the “Stockholders’ Representative”) for each Stockholder, (i) to give and authorizes receive notices and directs communications to or by Parent and Purchaser for any purpose under this Agreement and the Additional Agreements, (ii) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, (iii) to enter into and deliver the Escrow Agreement on behalf of each of the Stockholders, (iv) to authorize or object to delivery to Parent, Purchaser and the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent, Purchaser and the Surviving Corporation in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger and (vi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf for the accomplishment of such Stockholder and making any and all determinations) which the foregoing. Such agency may be required or permitted changed by this Agreement the Stockholders from time to be taken by such Persons; time upon no less than twenty (ii20) exercise such other rightsdays prior written notice to the Purchaser and, power and authorityif after the Effective Time, as are authorizedthe Surviving Corporation, delegated and granted to provided, however, that the Stockholders’ Representative pursuant may not be removed unless holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agrees to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises removal or change of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall not be effective until written notice is delivered to Purchaser. No bond shall be absolutely required of the Stockholders’ Representative, and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power the Stockholders’ Representative shall not receive any compensation for his services. Notices or authority communications to or made such decision from the Stockholders’ Representative shall constitute notice to or determination in such Person’s capacityfrom the Stockholders. Each Stockholder agrees that the The Stockholders’ Representative shall not be liable for any actions taken act done or omitted to 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 all of the Stockholders of the Company and shall be taken under final, binding and conclusive upon each of the Stockholders. The 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. Notwithstanding anything in this Agreement or Section 14.15 to the transactions contemplated hereby or therebycontrary, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating (in his capacity as such) shall have no obligation or authority with respect to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed indemnification claims against a Stockholder made by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Persona Purchaser Indemnitee under Section 11.1.
Appears in 1 contract
Stockholders’ Representative. Each (a) By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Stockholder hereby irrevocably authorizes, directs (other than Dissenting Stockholders) and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder the holders of Warrants or Options (the “Stockholders’ RepresentativeCompany Equityholders”) ), without any further action of any of the Company Equityholders or the Company, hereby appoints and authorizes and directs constitutes Fortis Advisors LLC as the Stockholders’ Representative for and on behalf of the Company Equityholders and as his, her or its attorney-in-fact and exclusive agent to execute and deliver this Agreement, the Escrow Agreement and the Paying Agent Agreement (collectively, the “Representative Agreements”) and for all other purposes hereunder and thereunder, and to take any and all actions and make any and all decisions required or permitted to be taken or made by the Stockholders’ Representative under the Representative Agreements or the Stockholders’ Representative Engagement Agreement, with full authority and power of substitution to act in the name, place and stead of such Company Stockholders. All such actions shall be deemed to be facts ascertainable outside of the Representative Agreements and shall be binding on the Company Equityholders as a matter of contract Law. Without limiting the generality of the foregoing, the Stockholders’ Representative has full power and authority, on behalf of each Company Equityholder and his, her or its successors and assigns, to:
(i) interpret the terms and provisions of the Representative Agreements and the documents to be executed and delivered by the Company Equityholders in connection herewith;
(ii) execute and deliver and receive deliveries of all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by any of the Representative Agreements;
(iii) receive any amounts due or to be paid to the Company Equityholders under any of the Representative Agreements;
(iv) allocate among the Company Equityholders and instruct the Paying Agent or the Escrow Agent to distribute and pay to the Company Equityholders any amount to be paid to the Company Equityholders or to be paid to the Stockholders’ Representative on behalf of the Company Equityholders hereunder, and delivery of wire instructions to Parent, the Paying Agent or the Escrow Agent in connection with the foregoing;
(v) authorize delivery to Parent of the Escrow Fund, the PPP Escrow Fund, or any portion thereof, pursuant to the terms hereof;
(vi) negotiate and settle any dispute related to any post-Closing purchase price adjustments as contemplated by Section 1.4 and Section 1.5, including (A) prepare and deliver a Notice of Disagreement or Earnout Statement Dispute Notice, if deemed appropriate in the Stockholders’ Representative’s sole discretion, (B) make or authorize any payment to Parent on behalf of the Company Equityholders in connection therewith, and (C) reduce or withhold any amounts otherwise payable to the Company Equityholders;
(vii) act on behalf of the Company Equityholders in all matters relating to ARTICLE VI of this Agreement, including agreeing to, negotiating, entering into settlements and compromises of, and assuming the defense of, indemnification claims and initiating claims and complying with Orders with respect to such indemnification claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing;
(viii) take any and all actions that may be necessary or desirable, as determined by the Stockholders’ Representative in its sole discretion, in connection with the amendment of any Representative Agreement in accordance with its terms;
(including, without limitation, executing ix) give and delivering receive notices and communications;
(x) receive service of process in connection with any documents, incurring indemnification claims under this Agreement; and
(xi) take any costs and expenses all other actions and do any and all other things necessary or appropriate in the judgment of the Stockholders’ Representative on behalf of such Stockholder any or all Company Equityholders in connection with any Representative Agreement, the Stockholders’ Representative Engagement Agreement and making the transactions contemplated thereby. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to act on behalf of the Company Equityholders, except as expressly provided herein, in the Escrow Agreement and in the Stockholders’ Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative in any other ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The powers, immunities and all determinations) which may be required or permitted by this Agreement rights to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and indemnification granted to the Stockholders’ Representative pursuant to this Agreement; Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Equityholder and shall be binding on any successor thereto, and (iiiii) exercise such rightsshall survive the delivery of an assignment by any Company Equityholder of the whole or any fraction of his, power and authority as are incidental to her or its interest in the foregoingEscrow Fund. Any such All actions taken, exercises of rights, power or authority, and any decision or determination made taken by the Stockholders’ Representative consistent therewithunder this Agreement, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power the Escrow Agreement or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative Engagement Agreement shall not be liable for binding upon each Company Equityholder and such Company Equityholder’s successors as if expressly confirmed and ratified in writing by such Company Equityholder, and all defenses which may be available to any actions Company Equityholder to contest, negate or disaffirm the action of the Stockholders’ Representative taken or omitted to be taken in good faith under or in connection with this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer Representative Engagement Agreement are waived.
(b) Parent shall be entitled to deal exclusively with the Stockholders’ Representative on behalf of any Company Equityholder with respect to all matters relating to this Agreementthe Representative Agreements and the transactions contemplated thereunder. Parent, and shall be entitled to rely any other Person, may conclusively (and absolutely rely, without inquiry and without further evidence of any kind whatsoever) on , upon any document executed by consent, approval or purported action of the Stockholders’ Representative as the consent, approval or action, as the case may be, of each Company Equityholder individually and all Company Equityholders as a group in all matters referred to herein, and each confirms all that the Stockholders’ Representative shall do or cause to be executed done by virtue of its appointment as the Stockholders’ Representative. The Stockholders’ Representative shall be entitled to: (i) rely upon the Disbursement Schedule, (ii) rely upon any signature believed by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Equityholder or other party.
(c) Certain Company Equityholders have entered into an engagement agreement (the “Stockholders’ Representative Engagement Agreement”) with the Stockholders’ Representative to provide direction to the Stockholders’ Representative in connection with its services under this Agreement, the Escrow Agreement and the Stockholders’ Representative Engagement Agreement (such Company Equityholder, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any Stockholder member of the Advisory Group (collectively, the “Stockholders’ Representative Group”), shall be liable to any Company Equityholder for any action or failure to act in connection with the acceptance or administration of the Stockholders’ Representative’s responsibilities hereunder, under the Escrow Agreement or under the Stockholders’ Representative Engagement Agreement, unless and only to the extent such action or failure to act constitutes gross negligence or willful misconduct. Each Company Equityholder hereby consents and agrees to all actions or inactions taken or omitted to be taken by the Stockholders’ Representative under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement and hereby agrees to indemnify, defend and hold harmless the Stockholders’ Representative Group from and against all damages, Losses, Liabilities, charges, penalties, costs, claims, fees, judgments and expenses (including court costs and legal fees and expenses, costs of other skilled professionals and in connection with seeking recovery from insurers) (collectively, the “Stockholders’ Representative Expenses”) incurred in any Proceeding between any such Person or Persons and the Company Equityholders (or any of them) or between any such Person or Persons and any third party or otherwise incurred or suffered as a result of or arising out of such actions or inactions of the Stockholders’ Representative under this Agreement, the Escrow Agreement or the Stockholders’ Representative Engagement Agreement (except for actions or inactions resulting from the willful malfeasance or gross negligence of the Stockholders’ Representative). The Stockholders’ Representative shall have the right to retain legal counsel and other advisors and to incur such fees as the Stockholders’ Representative deems reasonable and necessary in the exercise of its responsibilities hereunder and to seek payment or reimbursement from the Company Stockholders for such fees and expenses, including solely with respect to the internal relationship among the Stockholders’ Representative and the Company Equityholders setting off such fees and expenses against amounts otherwise payable to the Company Equityholders at the time such amounts are distributed. The Company Equityholders acknowledge that the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the Stockholders’ Representative in performing such actions.
(d) The Stockholders’ Representative may resign upon 90 days prior written notice thereof (the “Resignation Notice”) to Parent and each Company Stockholder; provided that a successor Stockholders’ Representative shall have been duly appointed pursuant to this Section 1.7(d) prior to the retiring Stockholders’ Representative’s resignation. Upon receipt of the Resignation Notice, a majority of Company Stockholders (based on their respective Pro Rata Share) shall appoint a successor Stockholders’ Representative. If no successor Stockholders’ Representative shall have been appointed by the Company Stockholders and shall have accepted such appointment, within 60 days after delivery of the Resignation Notice, then the Stockholders’ Representative wishing to resign shall, on behalf of the Company Stockholders, appoint a successor Stockholders’ Representative, which shall be any Company Equityholder. Upon the acceptance of its appointment as the Stockholders’ Representative hereunder by a successor Stockholders’ Representative, such successor Stockholders’ Representative shall succeed to and become vested, effective no earlier than 90 days after delivery of the Resignation Notice, with all the rights and duties of the retiring Stockholders’ Representative, and the retiring Stockholders’ Representative shall be discharged from its duties and obligations hereunder. After the retiring Stockholders’ Representative’s resignation hereunder as the Stockholders’ Representative, and on the provisions of this Agreement shall inure to its benefit as to any other action actions taken or purported omitted to be taken on behalf by it while it was the Stockholders’ Representative. The immunities and rights to indemnification shall survive the resignation or removal of any such Person by the Stockholders’ Representative as fully binding upon each such Personor any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby (a) The stockholders of the Company, by virtue of the approval of this Agreement, (i) shall be deemed to have consented to the deposit of the Escrowed Shares with the Escrow Agent pursuant to the terms of the Escrow Agreement, (ii) shall be deemed to have agreed that the Escrowed Shares will be subject to the indemnification provisions of Article 8, and (iii) shall be deemed to have irrevocably authorizes, directs constituted and appoints appointed ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act , or an entity wholly-owned by her as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative (together with his or her permitted successors) (the “Stockholder’s Representative”) as their true and lawful agent and attorney-in-fact (A) to enter into the Escrow Agreement, (iB) take to enter into any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted other agreement in connection with the transactions contemplated by this Agreement Agreement, (C) to be taken by such Persons; (ii) exercise such other rightsall or any of the powers, power authority and authority, as are authorized, delegated and granted to discretion conferred on the Stockholders’ Representative pursuant under this Agreement or any such agreement, (D) to waive or amend any terms and conditions of this Agreement or any such agreement, (E) to give and receive notices on their behalf and to be their exclusive representative to the extent of their respective interests in the Escrowed Shares with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by this Agreement or any such agreement, including the defense, settlement or compromise of any claim, action or proceeding for which a Buyer Party may be entitled to indemnification, (F) to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as it shall deem necessary or prudent in connection with the administration of the foregoing, (G) to provide for expenses incurred in connection with the administration of the foregoing, (H) to reimburse the Stockholders’ Representative for such expenses in the manner and to the extent provided in the Escrow Agreement, (I) to accept payment from Holdco or the Escrow Agent or the Paying Agent on behalf of the Company Stockholders, (J) to undertake the duties and responsibilities of, such agent and attorney-in-fact; and (iiiK) to take all other actions and exercise such rightsall other rights which the Stockholders’ Representative (in its sole discretion) considers necessary or appropriate in connection with this Agreement. This power of attorney is coupled with an interest and is irrevocable.
(b) The Stockholders’ Representative, power in connection with its obligations under this Agreement, the Escrow Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, shall not be liable for any action taken or not taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and authority as are incidental to duly authorized, nor for any other action or inaction in the foregoingabsence of willful misconduct. Any such actions takenIn all questions arising under this Agreement, exercises the Escrow Agreement or any other agreement made in connection with the transactions contemplated by this Agreement, the Stockholders’ Representative may rely on the advice or opinion of rights, power or authoritycounsel, and any decision for anything done, omitted or determination made suffered in good faith by the Stockholders’ Representative consistent therewithbased on such advice, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for to any actions taken Company Stockholder in its capacity as such. In performing its functions the Stockholders’ Representative will not be liable to the Company Stockholders in the absence of gross negligence or omitted to be taken under willful misconduct.
(c) The Stockholders’ Representative shall have no duties or responsibilities other than those expressly set forth in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Escrow Agreement. The Stockholders’ Representative’s willful misconduct. The Buyer , acting as such under this Agreement, is not charged with knowledge of or any duties or responsibilities under, and shall not be entitled to deal exclusively with bound by, any other document or agreement, other than the Escrow Agreement.
(d) If the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled unable or unwilling to rely conclusively serve in such capacity, its successor shall be named by those persons who held a majority of the shares of Capital Stock on an as-converted basis, immediately prior to the Effective Time and such successor shall serve and exercise the powers of Stockholders’ Representative hereunder.
(without further evidence e) The Stockholders’ representative will not be responsible for the validity or sufficiency of this Agreement or any kind whatsoever) on other agreement entered into by it in such capacity. The Stockholders’ Representative will not be required to take any document executed action hereunder or under the Escrow Agreement involving any expense unless the payment for such expense is made or provided for by or purported the Company Stockholders in a manner satisfactory to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Stockholders’ Representative. Each (a) Upon approval of the Merger and this Agreement by the Stockholder hereby Parties, each Stockholder Party will be deemed to have irrevocably authorizesappointed SCP Private Equity Management, directs LP., as its, his or her true and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole lawful attorney-in-fact and exclusive representative for such Stockholder agent (the “Stockholders’ Representative”) ), each with full power of substitution or resubstitution, to act solely and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses exclusively on behalf of such Stockholder and making any and all determinations) which may be required or permitted Party with respect to the transactions contemplated by this Agreement Agreement, including the Merger, and to be taken by act on behalf of such Persons; Stockholder Party 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 Party 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 Party;
(ii) exercise to act for such Stockholder Party 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 Party 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 Party 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 Party 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 any other rightsperson may conclusively and absolutely rely, power 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 authority, as are authorized, delegated and granted must be signed by the Stockholders’ Representative. All notices required to be made or delivered by Buyer or Merger Subsidiary to the Company described above shall be made to the Stockholders’ Representative pursuant for the benefit of such Stockholder Party and shall discharge in full all notice requirements of Buyer or Merger Subsidiary, as applicable, to this Agreement; and (iii) exercise such rightsStockholder Party with respect thereto. By their appointment of the Stockholders’ Representative, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by Stockholder Parties thereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of his appointment as the representatives of the Stockholder Parties hereunder. The Stockholders’ Representative shall act for the Stockholder Parties 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 Stockholder Parties and consistent therewithwith the obligations of the Stockholder Parties under this Agreement, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that but the Stockholders’ Representative shall not be liable responsible to any Stockholder Party for any actions taken or omitted to be taken under or in connection with this Agreement or damages which the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholder Parties may suffer by the performance of the Stockholders’ Representative’s duties under this Agreement, other than damages arising from willful misconductviolation of applicable law or gross negligence in the performance of such duties under this Agreement. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be entitled read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders’ Representative Fund shall be used to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder pay expenses incurred by the Stockholders’ Representative. By virtue of the approval of the Merger, and on any other action taken the Stockholder Parties agree that the Stockholders’ Representative is authorized to replenish the Stockholders’ Representative Fund with funds that would otherwise be distributed to the Stockholders’ Representative for distribution to the Stockholder Parties, if at that time there have been expenditures from the Stockholders’ Representative Fund or purported if the Stockholders’ Representative in his discretion believes it is necessary to maintain or increase the Stockholders’ Representative Fund at that time. Any portion of the Stockholders’ Representative Fund not expended at the end of the Second Installment Period shall be taken on behalf of any such Person distributed promptly by the Stockholders’ Representative to SCP and the Stockholder Parties as set forth in Section 2.2(a). By approval of the Merger, the Stockholder Parties hereby agree (a) to reimburse the Stockholders’ Representative for all out-of-pocket costs and expenses incurred by the Stockholders’ Representative under this Agreement, including fees for any attorneys or other representative he may employ, and (b) to severally 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 (a) 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, or (b) actions taken with respect to this 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) In the event that SCP Private Equity Management, LP resigns from its position as Stockholders’ Representative, SCP Private Equity Management, LP shall select a replacement Stockholders’ Representative, which replacement Stockholders’ Representative shall be deemed to be the Stockholders’ Representative for all purposes of this Agreement.
(d) The Stockholders’ Representative shall be entitled to rely, and shall be fully binding protected in relying, upon each such Personany statements furnished to it by the Company, any Stockholder Party, Buyer, Merger Subsidiary, 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.
Appears in 1 contract
Sources: Merger Agreement (CDC Corp)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. (a) ▇▇▇▇ ▇▇▇▇▇▇ to act as sole (such person and exclusive representative for such Stockholder (any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the Company Participants, and authorizes shall be authorized to act on behalf of the Company Participants and directs the Stockholders’ Representative to (i) take any and all actions required or permitted to be taken by the Stockholders’ Representative under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party or a Stockholder Indemnified Party (as the case may be) 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, executing and delivering any documentsthe exercise of the power to (i) authorize the delivery of Escrow Funds to a Parent Indemnified Party or, incurring any costs and expenses on behalf in Parent’s sole discretion, setoff against the Aggregate Earn-Out Amount, if permitted under this Agreement, in satisfaction of such Stockholder and making any and all determinations) which may be required or permitted claims by this Agreement to be taken by such Persons; a Parent Indemnified Party, (ii) exercise such other rightsagree to, power negotiate, enter into settlements and authoritycompromises of, as are authorized, delegated and granted comply with orders of courts with respect to any claims for indemnification and (iii) take all actions necessary in the judgment of the Stockholders’ Representative pursuant for the accomplishment of the foregoing). In all matters relating to this Agreement; Article IX, the Stockholders’ Representative shall be the only party entitled to assert the rights of the Company Participants, and the Stockholders’ Representative shall perform all of the obligations of the Company Participants hereunder. The Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Stockholders’ Representative. The Stockholders’ Representative may resign at any time upon ten (iii10) exercise such rightsdays prior notice to Parent, power and authority as are incidental at which time the holders of a majority of the shares of Company Stock immediately prior to the foregoing. Any such Effective Time (voting on an as-converted basis) shall designate a replacement Stockholders’ Representative.
(b) The Company Participants shall be bound by all actions taken, exercises of rights, power or authority, and any decision or determination made taken by the Stockholders’ Representative consistent therewithin 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 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 Company Participants. Neither the Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be absolutely 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 irrevocably binding on each such Person other experts selected by it. The Stockholders’ Representative shall not have any duty to ascertain or to inquire as if such Person personally had taken such actionto the performance or observance of any of the terms, exercised such rightscovenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for exercise any actions discretion or take any action.
(c) Each Company Participant shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such Company Participant’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 under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each under this Agreement or the Escrow Agreement, other than such Personliabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Stockholders’ Representative’s gross negligence, bad faith or willful misconduct.
(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 Participant any Transaction Consideration to which such Company Participant 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 Participant unless the Stockholders’ Representative is expressly authorized to do so in a writing signed by such Company Participant.
Appears in 1 contract
Stockholders’ Representative. (i) Each Stockholder of the Stockholders hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder Partners (the “"Stockholders’ ' Representative”") as such Stockholder's agent and authorizes and directs the Stockholders’ Representative attorney-in-fact to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be action required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsStockholder under the terms of this Agreement, power including, without limiting the generality of the foregoing, the giving and authorityreceipt of any notices to be delivered or received by or on behalf of any or all of the Stockholders, as are authorized, delegated and granted the payment of expenses relating to the Stockholders’ Representative pursuant to transactions contemplated by this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises representation of rights, power or authoritythe Stockholders in indemnification proceedings hereunder, and the right to waive, modify or amend any decision or determination made of the terms of this Agreement, and agrees to be bound by any and all actions taken by such agent on such Stockholder's behalf. Each Stockholder further agrees that the Stockholders’ Representative consistent therewith' Representative, its agents, general partners and representatives, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power fully indemnified by the other Stockholders to the fullest extent permitted by law for damages arising out of the Stockholders' Representative's actions or authority or made such decision or determination omissions in such Person’s capacity. Each Stockholder agrees hereby acknowledges that the Stockholders’ Representative foregoing indemnity shall not be liable for any actions taken applicable to all claims, liabilities, losses, damages or omitted expenses that have resulted from or are alleged to be taken under have resulted from the active or in connection with this Agreement passive, or the transactions contemplated hereby sole, joint or therebyconcurrent, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with ordinary negligence of the Stockholders’ Representative on all matters relating to this Agreement, and ' Representative.
(ii) Purchaser shall be entitled to rely conclusively (without further evidence of exclusively upon any kind whatsoever) on any document communications or writings given or executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, ' Representative and on shall not be liable in any other manner whatsoever for any action taken or purported to be not taken on behalf of any such Person in reliance upon the actions taken or not taken or communications or writings given or executed by the Stockholders’ ' Representative. Purchaser shall be entitled to disregard any notices or communications given or made by the Stockholders unless given or made through the Stockholders' Representative.
(iii) Subsequent to the Closing Date, in the event of the inability of the Stockholders' Representative to perform its functions hereunder, the former Stockholders shall promptly appoint a new agent or agents as fully binding attorney-in-fact or attorneys-in-fact, and such appointment or appointments shall be deemed to have been made when communicated to Purchaser in writing signed by the Stockholders (or the personal representatives thereof) owning at least 51% of the Common Stock of the Company outstanding immediately prior to the Closing Date. If the Stockholders do not within fifteen days appoint a new agent or agents, then the former Stockholder then living or existing who previously owned the greatest number of shares of Common Stock of the Company outstanding immediately prior to the Closing Date shall serve as Stockholders' Representative if he or it is able and willing to do so, until a successor agent or agents shall have been appointed in accordance with the provisions hereof.
(iv) The manner and form by which the Stockholders shall decide upon each any new agent and attorney-in-fact shall be decided solely by the Stockholders owning 51% of the shares of Common Stock of the Company outstanding immediately prior to the Closing Date. The Stockholders recognize, and hereby acknowledge, that the Stockholders' Representative has an interest in the subject matter of this Agreement and that the appointment of such PersonStockholders' Representative (which shall include any successor Stockholders' Representative) as the Stockholders' Representative constitutes an irrevocable power-of-attorney coupled with an interest.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) The holders of Non-Series F Securities (by virtue of the approval of the Merger and the adoption of this Agreement) hereby irrevocably authorizesnominate, directs constitute and appoints appoint C. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ to act as sole the agent and exclusive representative for such Stockholder true and lawful attorney-in-fact of the holders of Non-Series F Securities (the “Stockholders’ Representative”) ), with full power of substitution, to act in the name, place and authorizes stead of the holders of Non-Series F Securities for purposes of executing any documents and directs taking any actions that the Stockholders’ Representative to (i) take any and all actions (includingmay, without limitationin his sole discretion, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement determine to be taken necessary, desirable or appropriate in connection with any claim for indemnification, compensation or reimbursement under Section 7 or under the Escrow Agreement and any defense thereof. C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative.
(b) The holders of Non-Series F Securities (by such Persons; (iivirtue of the approval of the Merger and the adoption of this Agreement) exercise such other rights, power and authority, as are authorized, delegated and granted grant to the Stockholders’ Representative pursuant full authority to this Agreement; execute, deliver, acknowledge, certify and file on behalf of the holders of Non-Series F Securities (iiiin the name of any or all of the holders of Non-Series F Securities or otherwise) exercise such rights, power any and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees all documents that the Stockholders’ Representative shall not be liable for any actions taken or omitted may, in his sole discretion, determine to be taken under necessary, desirable or appropriate, 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 Section 8.1(a). Notwithstanding anything to the contrary contained in this Agreement or in any other Contract executed in connection with this Agreement or the transactions contemplated hereby or therebyhereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer each Indemnitee shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Section 7 and the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder holder of Non-Series F Securities by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any holder of Non-Series F Securities by the Stockholders’ Representative, as fully binding upon such Person holder of Non-Series F Securities. All decisions and actions by the Stockholders’ Representative as fully shall be binding upon all of the holders of Non-Series F Securities, and no holder of Non-Series F Securities shall have the right to object, dissent, protest or otherwise contest such decision or action.
(c) The power of attorney granted in Section 8.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall survive the death or incapacity of each of the holders of Non-Series F Securities.
(d) If the Stockholders’ Representative shall die, become disabled, resign or otherwise be unable to fulfill his responsibilities as agent of the holders of Non-Series F Securities, then the holders of Non-Series F Securities who hold a majority in interest of the Escrow Fund shall, within ten days after such Persondeath or disability, appoint a successor agent and, promptly thereafter, shall notify Parent and Escrow Agent of the identity of such successor. Unless and until the Escrow Agent shall receive notification of the appointment of such a successor agent, the Escrow Agent may assume that the last Stockholders’ Representative of which it has notice remains in that position. Any such successor shall become the “Stockholders’ Representative” for purposes of Section 7 and this Section 8.1. 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 holders of Non-Series F Securities.
(e) All expenses incurred by the Stockholders’ Representative in connection with the performance of his duties as Stockholders’ Representative shall be borne and paid exclusively by the holders of the Non-Series F Securities in accordance with the terms of the Escrow Charter.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) By virtue of the execution and delivery of this Agreement, directs Holdco and appoints the Stockholders shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole their Stockholders Representative. For purposes of this Agreement, the term “Stockholders Representative” shall mean the representative, true and exclusive representative lawful agent, proxy and attorney-in-fact of Holdco and the Stockholders for all purposes of this Agreement, with full power and authority on Holdco’s and such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to Stockholder’s behalf to: (i) take consummate the transactions set forth herein, (ii) pay such Person’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) receive, give receipt and disburse any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses funds received hereunder on behalf of such Stockholder Person and making to holdback from disbursement any and all determinations) which such funds to the extent it reasonably determines may be required necessary, (iv) execute such further instruments as Purchaser shall reasonably request, (v) execute and deliver on behalf of such Person all documents contemplated herein and any amendment or permitted by this Agreement waiver hereto, (vi) take all other actions to be taken by or on behalf of such Persons; Person in connection herewith, (iivii) exercise such other rightsnegotiate, power settle, compromise and authorityotherwise handle all disputes under this Agreement, as are authorized, delegated and granted (viii) waive any condition to the Stockholders’ Representative pursuant obligation of such Person to consummate the transactions contemplated by this Agreement; , (ix) give and receive notices on behalf of such Person and (iiix) do each and every act and exercise any and all rights which such rightsPerson is, or Holdco and the Stockholders collectively are, permitted or required to do or exercise under this Agreement. Holdco and the Stockholders, by approving the principal terms of the transactions set forth herein and/or accepting the consideration payable to them hereunder, irrevocably grant unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or desirable to be done in connection with the transactions contemplated by this Agreement, as are incidental fully to all intents and purposes as Holdco and the Stockholders might or could do in person. Such agency may be changed by Holdco or the Stockholders from time to time upon not less than thirty (30) calendar days prior written notice to Purchaser; provided, however, that the Stockholders Representative may not be removed unless Stockholders that held at least two-thirds of the equity of Holdco prior to the Closing agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing. Any , in the event of a resignation of the Stockholders Representative or other vacancy in the position of Stockholders Representative, such actions taken, exercises of rights, power or authority, and any decision or determination made vacancy may be filled by the Stockholders’ Representative consistent therewith, Stockholders that held at least a majority of the equity of Holdco prior to Closing. No bond shall be absolutely required of the Stockholders Representative. After the Closing, notices or communications to or from the Stockholders Representative shall constitute notice to or from Holdco and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ .
(b) The Stockholders Representative shall not be liable for any actions taken act done or omitted hereunder as Stockholders Representative while acting in good faith and without gross negligence or willful misconduct. The Stockholders Representative shall not be liable for any action or omission pursuant to be taken under the advice of counsel. The Stockholders shall indemnify the Stockholders Representative and hold the Stockholders Representative harmless against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, Actions, fees, costs and expenses arising out of or in connection with this Agreement the acceptance or administration of the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Stockholders Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders Representative (“Representative Expenses”), in each case, as such Representative Expense is incurred or suffered; provided, that in the event that any such Representative Expense is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders Representative, the Stockholders Representative will reimburse Holdco the amount of such indemnified Representative Expense to the extent attributable to such gross negligence or willful misconduct. The Buyer A decision, act, consent or instruction of the Stockholders Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 12.2 or Section 12.3, shall be entitled to deal exclusively with constitute a decision of Holdco and the Stockholders’ Representative on all matters relating to this Agreement, Stockholders and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by final, conclusive and binding upon Holdco and the Stockholders’ Representative; and Purchaser, Parent and on any other action taken or purported to be taken on behalf of their respective Affiliates (including the Company) may rely upon any such Person by decision, act, consent or instruction of the Stockholders Representative as being the decision, act, consent or instruction of Holdco and the Stockholders’ Representative as fully binding upon each . Purchaser, Parent and their respective Affiliates (including, following the Closing, the Company) are hereby relieved from any liability to any Person for any acts done by them in accordance with such Persondecision, act, consent or instruction of the Stockholders Representative.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs (a) At the Closing and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to without further act as sole and exclusive representative for such Stockholder (of the “Stockholders’ Representative”) and authorizes and directs Company or any Equity Holder the Stockholders’ Representative shall be appointed as agent and attorney in fact for each Equity Holder to (i) take give and receive notices and communications, execute any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses instruments or other documents on behalf of such Stockholder Equity Holder, and making to do any and all determinations) 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 permitted by this 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 to be taken by such Persons; on behalf of each Equity Holder, (ii) exercise act for each Equity Holder with respect to any Merger Consideration Adjustment, (iii) give and receive notices and communications to or from Buyer and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such other rightsnotice or communication shall be given or received by such Equity Holders individually), power and authority, as are authorized, delegated and granted to (iv) take all actions necessary or appropriate in the judgment of the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to for the accomplishment of the foregoing. Any such The Stockholders’ Representative shall have authority and power to act on behalf of each Equity Holder with respect to the disposition, settlement or other handling of all claims under this Agreement and the Escrow Agreement and all rights or obligations arising under this Agreement and the Escrow Agreement. The Equity Holders shall be bound by all actions taken, exercises of rights, power or authority, taken and any decision or determination made documents executed by the Stockholders’ Representative consistent therewithin connection with this Agreement and the Escrow Agreement, and Buyer shall be absolutely entitled to rely on any action or decision of the Stockholders’ Representative. The Stockholders’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each Equity Holder. A decision, act, consent or instruction of the Stockholders’ Representative (acting in its capacity as the Stockholders’ Representative) shall constitute a decision of all the Equity Holders and irrevocably shall be final, conclusive and binding on upon each such Person Equity Holder, and Buyer may rely upon any such decision, act, consent or instruction of the Stockholders’ Representative as if being the decision, act, consent or instruction of each such Person personally had taken such action, exercised such rights, power Equity Holder.
(b) The Stockholders’ Representative shall not have by reason of this Agreement or authority or made such decision or determination otherwise a fiduciary relationship in such Person’s capacityrespect of any Equity Holder. Each Stockholder agrees that the The Stockholders’ Representative shall not be liable to any Equity Holder for any actions action taken or omitted to be taken by it or any agent employed by it under this Agreement. Each Equity Holder shall severally (based on each such Equity Holder’s Pro Rata Percentage), and not jointly, indemnify and hold harmless the Stockholders’ Representative from and against any loss incurred and arising out of or in connection with this Agreement the acceptance or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence administration of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personits duties hereunder.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) Pursuant to the Stockholders Approval dated on or about the date hereof, directs the Letters of Transmittal and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act the Warrant Termination Agreements, as sole applicable, the Stockholders and exclusive representative for the Warrantholders have constituted, appointed and empowered effective from and after the date of such Stockholder (consent, Olympus Growth Fund IV, L.P. as the “Stockholders’ Representative”, for the benefit of the Stockholders and the Warrantholders and the exclusive agent and attorney-in-fact to act on behalf of each Stockholder and Warrantholder, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and authorizes deliver such waivers, consents and directs amendments under this Agreement and the consummation of the transactions contemplated hereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and protect the rights and interests of the Stockholders and the Warrantholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, as and to the extent applicable to them, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of the Stockholders and the Warrantholders, including consenting to, compromising or settling any such claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action or investigation; (B) investigate, defend, contest or litigate any Action or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Stockholders or Warrantholders, and receive process on behalf of any or all Stockholders and Warrantholders in any such Action or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action or investigation; (C) file any proofs of debt, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (iii) to waive or refrain from enforcing any right of the Stockholders or the Warrantholders arising out of or under or in any manner relating to this Agreement; provided, however, that such waiver is in writing signed by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Stockholders and the Warrantholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and direct the disbursement of (if applicable under this Agreement) the Purchase Price Adjustment Holdback Amount, the Expense Holdback Amount, and the Indemnity Holdback Amount in accordance with the terms of this Agreement.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Stockholders and the Warrantholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder, (i) the Stockholders’ Representative shall incur no responsibility whatsoever to any Stockholders or Warrantholders by reason of any act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Stockholders’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to (i) take liability to any Stockholders or Warrantholders. Each Stockholder and all actions (includingWarrantholder shall indemnify, without limitationseverally and not jointly, executing based on such Stockholder’s and delivering any documents, incurring any costs and expenses on behalf Warrantholder’s pro rata share of Merger Consideration received by such Stockholder and making Warrantholder, as applicable, the Stockholders’ Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever, arising out of or relating to any acts or omissions (including any breach) of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. The Stockholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Stockholders or the Warrantholders any amounts to which it is entitled pursuant to the expense reimbursement and all determinationsindemnification provisions of this Section 8.15(b).
(c) which may be required or permitted by All of the indemnities, immunities and powers granted to the Stockholders’ Representative under this Agreement shall survive the Effective Time and/or any termination of this Agreement.
(d) Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , all of which actions or omissions shall be legally binding upon the Stockholders and the Warrantholders.
(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 Stockholder or Warrantholder and (iiiii) exercise such rights, power and authority as are incidental to shall survive the foregoing. Any such actions taken, exercises consummation of rights, power or authoritythe Merger, and any decision or determination made action taken by the Stockholders’ Representative consistent therewith, pursuant to the authority granted in this Agreement shall be absolutely effective and irrevocably binding on each Stockholder and Warrantholder notwithstanding any contrary action of or direction from such Person as if such Person personally had taken such actionStockholder or Warrantholder, exercised such rightsexcept for actions or omissions of the Stockholders’ Representative constituting willful misconduct.
(f) Each of the Company, power or authority or made such decision or determination Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative is a Party to this Agreement in such Person’s capacitycapacity solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Each Stockholder Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative shall have no liability to, and shall not be liable for any actions taken losses of, any of the Company, Merger Sub or omitted to be taken under or Parent in connection with any obligations of the Stockholders’ Representative under this Agreement or otherwise in respect of this Agreement or the transactions contemplated hereby or therebyhereby, except for to the extent such actions taken or omitted losses shall be proven to be taken resulting from Stockholders’ Representative’s the direct result of willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person misconduct by the Stockholders’ Representative as fully binding upon each such Personin connection with the performance of its obligations hereunder.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) By voting in favor of the Merger, directs executing the Voting and appoints Support Agreement, a Letter of Transmittal or, Option Cancellation Agreement or participating in the conversion, exercise or cancellation, as applicable, of the Company’s Capital Stock, Common Options or Common Warrant, each Equity Holder approves the designation of and designates ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) , as its, his or her true and authorizes lawful attorney-in-fact and directs agent, each with full power of substitution or resubstitution, to act solely and exclusively on behalf of such Equity Holder with respect to the transactions contemplated by this Agreement, including the Merger, and to act on behalf of such Equity Holder 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 to shall deem necessary or appropriate in connection with the transactions contemplated hereby, including the power:
(i) take to act for such Equity Holder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses indemnity claim on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; Stockholder;
(ii) exercise to act for such Equity Holder 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 Equity Holder;
(v) to receive funds for the payment of expenses of such Equity Holder and apply such funds in payment for such expenses;
(vi) to distribute any unused portion of the Reserve Account to the Stockholders in accordance with the terms of this Agreement;
(vii) to do or refrain from doing any further act or deed on behalf of such Equity Holder 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
(viii) 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, the Merger Subs and any other rightsPerson may conclusively and absolutely rely, power and authoritywithout inquiry, as are authorized, delegated and granted upon any action of the Stockholders’ Representative in all matters referred to herein. All notices required to be made or delivered by Buyer or the Merger Sub to the Company described above shall be made to the Stockholders’ Representative pursuant for the benefit of such Equity Holder and shall discharge in full all notice requirements of Buyer, any Buyer Indemnitee or the Merger Subs as applicable, to such Equity Holder with respect thereto. The Stockholders’ Representative shall act for the Company Indemnifying Parties on all of the matters set forth in this Agreement; and (iii) exercise such rights, power and authority as are incidental to Agreement in the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by manner the Stockholders’ Representative reasonably believes to be in the best interest of the Company Indemnifying Parties and consistent therewithwith the obligations of the Company Indemnifying Parties under this Agreement, but none of the Stockholders’ Representative, Buyer, the Merger Subs, the Surviving Corporation or the Buyer Indemnitees shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such actionresponsible to any Equity Holder for any damages which the Company Indemnifying Parties may suffer by the performance of the Stockholders’ Representative’s duties under this Agreement, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees except that the Stockholders’ Representative shall be solely responsible for all damages arising from willful violation of applicable Law by him 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 the Transaction Documents, and no implied covenants, functions, responsibilities, duties or liabilities shall be liable for any actions taken or omitted to be taken under or in connection with read into this Agreement or shall otherwise exist against the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative. By voting in favor of the Merger, executing the Voting and Support Agreement, or Option Cancellation Agreement or participating in the conversion, exercise or cancellation, as applicable, of the Company’s willful misconduct. The Buyer shall be entitled Capital Stock, Common Options or Common Warrants, each Equity Holder agrees (i) to deal exclusively with reimburse the Stockholders’ Representative on for all matters relating to out-of-pocket costs and expenses incurred by the Stockholders’ Representative under this AgreementAgreement in excess of the Reserve Amount, including fees for any attorneys or other representative he may employ, and shall be entitled (ii) to rely conclusively severally (without further evidence without, for the avoidance of doubt, any kind whatsoeverright of contribution from any of the Surviving Corporation or the Buyer Indemnitees) on any document executed by or purported to be executed on behalf of any Stockholder by indemnify and hold harmless and defend the Stockholders’ Representative, his agents and on 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, or (y) actions taken with respect to this 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 it by the Company, any Equity Holder, Buyer, the Merger Subs or any other action taken or purported to be taken on behalf of any such Person 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 him.
(d) The sum of $75,000 will be set aside in the Reserve Account to reimburse the Stockholders’ Representative for expenses he incurs in his capacity as fully binding such. The Stockholders’ Representative shall be entitled to a fee of $250,000 for his services as such and will have the right to be reimbursed from the Reserve Account solely for his expenses incurred, in his capacity as such, pursuant to this Agreement but will not otherwise be separately compensated for his services hereunder. The Reserve Account will be used solely for the purpose of paying the Stockholders’ Representative’s fees and expenses under this Section 12.13(d) and any amounts representing the indemnification obligations of the Company Indemnifying Parties to the Stockholders’ Representative under Section 12.13(b) as if such obligations were a reimbursable expense. Any amounts remaining in the Reserve Account on the Reserve Amount Release Date shall be released to the Paying Agent and Surviving Corporation for their payments to the Stockholders respectively.
(e) In the event that the Stockholders’ Representative dies, becomes legally incapacitated or resigns (by providing Buyer a minimum of 60 day advance written notice) from his position as Stockholders’ Representative, a successor Stockholders’ Representative (who shall either be a Stockholder or another Person reasonably acceptable to Buyer) shall be appointed in writing by a majority in interest of the Company Indemnifying Parties, such appointment to become effective upon each the delivery of executed counterparts of such Personwriting to Buyer, together with an acknowledgement signed by the successor Stockholders’ Representative named in such writing that he, she or it accepts the responsibility of successor Stockholders’ Representative and agrees to perform and be bound by all provisions of this Agreement applicable to the Stockholders’ Representative. Failing such appointment, any Equity Holder may apply to a court of competent jurisdiction for the appointment of a successor Stockholders’ Representative.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Tabula Rasa HealthCare, Inc.)
Stockholders’ Representative. Each (a) By executing and delivering this Agreement, each Stockholder hereby irrevocably authorizes, directs constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as his true and lawful agent and attorney-in-fact (the "Stockholders' Representative") with full power of substitution to act in his name, place and ▇▇▇▇▇ with respect to all transactions contemplated by, and all terms and provisions of, this Agreement, and to act on his behalf in any dispute or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders' Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, in all events in the Stockholders' Representative's sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to (i) take any and all actions (absolute discretion, including, without limitation, executing the power:
(i) to waive any condition to the obligations of the Company and delivering the Stockholders to consummate the transactions contemplated by this Agreement;
(ii) to act for each Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any documents, incurring any costs and expenses claim on behalf of any Stockholder and to transact matters of litigation;
(iii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of each Stockholder in connection with the consummation of the transactions contemplated by this Agreement;
(iv) to do or refrain from doing any further act or deed on behalf of each Stockholder relating to the subject matter of this Agreement, as fully and completely as each such Stockholder could do if personally present; and
(v) to receive all notices on behalf of each Stockholder in connection with any claims or matters under this Agreement.
(b) The appointment of the Stockholders' Representative in this Section 1.04 shall be deemed coupled with an interest and making shall be irrevocable, and Buyer and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders' Representative on behalf of the Stockholders in all determinationsmatters referred to herein. All notices delivered by Buyer to the Stockholders' Representative (whether pursuant hereto or otherwise) which may be required for the benefit of the Stockholders shall constitute notice to the Stockholders.
(c) All actions, decisions and instructions of the Stockholders' Representative taken, made or permitted by this Agreement given pursuant to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and the authority granted to the Stockholders’ ' Representative pursuant to paragraph (a) above shall be conclusive and binding upon the Stockholders, and the Stockholders shall not have the right to object, dissent, protest or otherwise contest the same.
(d) The provisions of this Agreement; Section 1.12 are independent and (iii) exercise such rightsseverable, shall constitute an irrevocable power and authority as are incidental of attorney, coupled with an interest surviving death or disability of any Stockholder, granted by each of the Stockholders to the foregoing. Any such actions takenStockholders' Representative and shall be binding upon the executors, exercises heirs, legal representatives, successors and assigns of rights, power or authority, and any decision or determination made by each of the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The .
(a) Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence on the instructions and decisions of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on ' Representative as to any other action taken actions required or purported permitted to be taken on behalf of any such Person by the Stockholders or the Stockholders’ ' Representative as fully binding hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken in good faith by Buyer in reliance upon each such Personthe instructions or decisions of the Stockholders' Representative.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesappoints JLL Partners, directs Inc. (the "Stockholders' Representative") as its agent and appoints ▇▇attorney-in-fact, with full power, by and in the name of such Stockholder, to execute any and all instruments or other documents on behalf of such Stockholder, and to do any and all other acts or things on behalf of such Stockholder, which the Stockholders' Representative may deem necessary or advisable, or which may be required pursuant to this Agreement or otherwise, in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement and the performance of all obligations hereunder or thereunder at or following the Closing. ▇▇▇▇ ▇▇▇▇▇ to act as sole Without limiting the generality of the foregoing, the Stockholders' Representative shall have the full and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative authority to (i) take agree with Purchaser with respect to any matter or thing required or deemed necessary by the Stockholders' Representative in connection with the provisions of this Agreement calling for the agreement of Stockholders, give and all actions (including, without limitation, executing receive notices and delivering any documents, incurring any costs and expenses receive service of process on behalf of such Stockholder all Stockholders, and making act on behalf of Stockholders in connection with any and all determinations) matter as to which Stockholders are or may be obligated under the Merger Agreement or this Agreement, all in the absolute discretion of the Stockholders' Representative; provided, however, that the Stockholders' Representative shall not be required or permitted by this Agreement to be taken by such Personsmake any payments on a behalf of any Stockholder pursuant to Article IV hereof; (ii) exercise such in general, do all things and perform all acts, including without limitation executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other rightsinstruments or documents contemplated by, power and authority, as are authorized, delegated and granted to or deemed by the Stockholders’ ' Representative pursuant to be necessary or advisable in connection with, the Merger Agreement or this Agreement; and (iii) exercise such rightstake all actions necessary or desirable in connection with the performance of obligations under Articles II and III of the Merger Agreement, power including to withhold funds for satisfaction of expenses or other liabilities and authority as are incidental obligations.
(b) Notwithstanding anything to the foregoing. Any such actions takencontrary contained herein, exercises without the prior written consent of rightsthe Stockholders, power the Stockholders' Representative shall not agree to any amendment or authoritymodification of this Agreement, enter into any other contract, agreement, arrangement or understanding or execute any document or instrument, that would: (i) expand the indemnification obligations of the Stockholders under Article IV of this Agreement; (ii) impose any obligations on the Stockholders not set forth in this Agreement as of the date hereof (other than administrative, technical or procedural matters relating to the performance of this Agreement and the discharge of the Stockholders' obligations hereunder); or (iii) materially alter the economic terms of the Merger as set forth in the Merger Agreement as of the date hereof.
(c) The Stockholders shall cooperate with the Stockholders' Representative and any decision accountants, attorneys or determination made other agents whom it may retain to assist in carrying out its duties hereunder. All decisions by the Stockholders’ ' Representative consistent therewith, shall be absolutely binding upon all Stockholders, and irrevocably binding on each such no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. The Stockholders' Representative may communicate with any Stockholder or any other Person as if such Person personally had taken such actionconcerning its responsibilities hereunder, exercised such rightsbut it is not required to do so. The Stockholders' Representative has a duty to serve in good faith the interests of the Stockholders and to perform its designated role under this Agreement, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that but the Stockholders’ ' Representative shall not be liable for have no financial liability whatsoever to any actions Person relating to its service hereunder (including any action taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or therebytaken), except that it shall be liable for such actions taken harm which it directly causes by its gross negligence or omitted to be taken resulting from Stockholders’ Representative’s an act of willful misconduct. .
(d) The Buyer shall be entitled Stockholders severally but not jointly hereby agree to deal exclusively with indemnify and hold, to the extent of their Percentage Interest set forth on Schedule I hereto, harmless the Stockholders’ ' Representative on all matters relating to against any out-of-pocket loss, reasonable expense (including reasonable attorney's fees) or other liability arising out of its service as Stockholders' Representative under this Agreement, and other than for harm directly caused by its gross negligence or an act of willful misconduct; provided, however, that no Stockholder shall be entitled required to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by indemnify the Stockholders’ Representative' Representative against any loss, expense or liability arising from an action, suit, proceeding or other claim brought by another Stockholder. The Stockholders' Representative may resign at any time by notifying in writing Purchaser and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ . The Stockholders' Representative as fully binding upon each such Personshall not appoint any substitute or replacement Stockholders' Representative without the prior written consent of Stockholders holding a majority of the aggregate percentage interest set forth on Schedule I hereto, which consent shall not be unreasonably withheld. The term Stockholders' Representative shall include any substitute appointed pursuant hereto.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizesUpon approval of the Merger, directs and appoints ▇▇. the Stockholders shall have been deemed to appoint ▇▇▇▇ ▇▇▇▇▇ to act as sole the true and exclusive representative for such Stockholder lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and authorizes 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 directs 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 to (i) take any and all actions (shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, executing and delivering the power:
(i) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any documents, incurring any costs and expenses indemnity claim on behalf of such Stockholder the Stockholders and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; transact matters of litigation;
(ii) exercise to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Merger Price, and to do or refrain from doing the actions further described in the Paying Agent Procedures;
(iv) to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement and the Paying Agent Procedures as fully and completely as the Stockholders could do if personally present; and
(v) 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 the Surviving Corporation 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇. If ▇▇▇▇▇▇ ▇▇▇▇▇▇ subsequently resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders which held a majority of the Company Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such other rightsevent should occur, power and authority, as are authorized, delegated and granted to any action taken by the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise Section 2.8 shall be as valid as if such rightsdeath or incapacity, power and authority as are incidental to the foregoing. Any such actions takentermination or other event had not occurred, exercises regardless of rights, power whether or authority, and any decision or determination made by not the Stockholders’ Representative consistent therewithor the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or the Surviving Corporation to the Stockholders shall be absolutely made to the Stockholders’ Representative for the benefit of the Stockholders and irrevocably binding shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of his appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on each such Person as if such Person personally had taken such actionall 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 under this Agreement, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that but the Stockholders’ Representative shall not be liable responsible to the Stockholders for any actions taken loss or omitted to be taken under or in connection with this Agreement or damages the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder Stockholders may suffer by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person performance by the Stockholders’ Representative of his duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of his duties under this Agreement. The Stockholders’ Representative and his heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages arising out of or in connection with the performance of his obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative or of his duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary herein, the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, his individual liability as fully binding upon each such Persona Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) The Company, on behalf of the Company Stockholders, hereby irrevocably authorizes, directs constitutes and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder in accordance with Section 4(f) of the Securityholders Agreement, Carlyle CIM Agent, L.L.C. (the “Stockholders’ Representative”) as the true and authorizes lawful agent and directs attorney-in-fact of each of the Company Stockholders, with full powers of substitution to act individually in the name, place and stead of each of the Company Stockholders with respect to the transactions contemplated by this Agreement and the other Transaction Documents, as the same may be from time to time amended, and to individually do or refrain from doing all such further acts and things, and to execute all such documents, as he shall deem necessary or appropriate in connection with any of the transactions contemplated hereby and thereby.
(b) Buyer shall be entitled to rely exclusively, without any independent verification or investigation, upon any instruction or other communication given by the Stockholders’ Representative to (i) take and shall not be liable in any manner whatsoever for any action taken or not taken in reliance upon the Stockholders’ Representative. Any payments made, at the Stockholders’ Representative’s request and all actions (includinginstruction, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted Buyer to the Stockholders’ Representative pursuant to the terms of this Agreement; Agreement shall fully discharge Buyer from any liability to any Company Stockholder in connection with such payment, as fully and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person completely as if such Person personally payment had taken been made directly to such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacityCompany Stockholder. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated Buyer hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreementagrees, and shall be entitled permitted, to accept and rely conclusively (without further evidence on the actions of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personif it were the action of a Company Stockholder or the Company Stockholders. Notwithstanding anything to the contrary contained herein, following the Closing, except to the extent included in Company Working Capital as finally determined pursuant to Section 1.10, no Insight Company shall have any obligation or liability in respect of costs or expenses incurred by or on behalf of any Company Stockholder or the Stockholders’ Representative.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) By virtue of the adoption of this Agreement, the Stockholders’ Representative is hereby irrevocably authorizesauthorized, directs directed and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ appointed to act as sole and exclusive agent, attorney-in-fact and representative for such Stockholder of the Stockholders, with full power of substitution and authority with respect to all matters under this Agreement, including (i) to negotiate, execute and deliver all ancillary agreements, certificates, approvals, waivers, amendments and other documents required or permitted to be given in connection with this Agreement; (ii) to give and receive all notices and communications to be given or received under this Agreement; (iii) to calculate the “Closing Adjusted Merger Consideration and other amounts in the Initial Closing Statement and the Consideration Statement and to dispute or agree to any final determination of any of the foregoing pursuant to Section 2.7; (iv) to defend, agree to, object to, negotiate, resolve, enter into settlements and compromises of, demand litigation of, and comply with orders of courts with respect to any claims under this Agreement or the Acquisition; (v) to appoint one or more successor Stockholders’ Representative”Representatives; (vi) and authorizes and directs to perform the duties expressly assigned to the Stockholders’ Representative under this Agreement; (vii) to engage and employ agents and representatives (iincluding accounting, legal and other professional advisors) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinationsat the expense of the Stockholders; (viii) which may be required to exercise or permitted by refrain from exercising remedies available under this Agreement or any other ancillary agreement and to sign any release or other document with respect to such dispute or remedy, as the Stockholders’ Representative, in its reasonable discretion, determines to be necessary or desirable; (ix) to execute and deliver amendments, waivers and consents in connection with this Agreement as the Stockholders’ Representative, in his reasonable discretion, determines to be necessary or desirable; (x) to incur such other expenses as the Stockholders’ Representative shall reasonably deem necessary or prudent in connection with the foregoing; and (xi) to take all other actions to be taken by such Persons; (ii) exercise such other rights, power or on behalf of the Stockholders in connection with this Agreement. Each Stockholder agrees to be bound by all agreements and authority, as are authorized, delegated determinations made by and granted to documents executed and delivered by the Stockholders’ Representative pursuant to the authority granted to it hereunder.
(b) The Stockholders’ Representative shall have the sole and exclusive right on behalf of any Stockholder to take any action or provide any waiver, or receive any notice under this Agreement; Agreement and (iii) exercise such rights, power and authority as are incidental to the foregoingsettle 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 therewithherewith, shall be absolutely and irrevocably final and binding on each such Person Stockholder (including its applicable successors and assigns) as if such Person Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such PersonStockholder’s individual capacity, and no Stockholder (including its applicable successors or assigns) shall have the right to object, dissent, protest or otherwise contest the same. Each Stockholder agrees The appointment of the Stockholders’ Representative is coupled with an interest and shall be irrevocable by the Stockholders in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the principal pursuant to any applicable Law.
(c) The Stockholders’ Representative shall hold the Stockholders’ Representative’s Expense Fund in the Stockholders’ Representative Expense Account as a fund from which the Stockholders’ Representative may pay any fees, expenses, costs or Liabilities it incurs in performing its duties and obligations under this Agreement by or on behalf of any or all Stockholders, including legal, accounting and other consulting fees, expenses and costs for reviewing, analyzing and defending any claim or process arising under or pursuant to this Agreement. At such time as all payments have been settled pursuant to Section 2.7 and all indemnification claims have been finally resolved, the Stockholders’ Representative shall distribute any remaining funds in the Stockholders’ Representative Expense Account after payment of all fees and expenses of the Stockholders accordance with their respective Pro Rata Share.
(d) For all purposes of this Agreement, Purchaser and each of its Affiliates shall be entitled to rely conclusively on the instructions and decisions of the Stockholders’ Representative or any other actions required or permitted to be taken by the Stockholders’ Representative under this Agreement or in connection with any of the transactions and other matters contemplated by this Agreement.
(e) The Stockholders’ Representative may resign from its capacity as the Stockholders’ Representative at any time by written notice delivered to Purchaser. If there is a vacancy at any time in the position of Stockholders’ Representative for any reason, such vacancy shall be filled by a vote of the Stockholders that held a majority of the Company Stock immediately prior to the Closing.
(f) In the absence of deliberate fraud or willful misconduct, the Stockholders’ Representative shall not be liable to Purchaser or the Stockholders in its capacity as the Stockholders’ Representative for any actions liability of a Stockholder or for any error of judgment, or any act done or step taken or omitted by it that it believed to be taken 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. The Stockholders’ Representative may 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 its duties under this Agreement, and without limiting the foregoing, it shall incur no liability in his capacity as Stockholders’ Representative to Purchaser or the Stockholders and shall be fully protected with respect to any action taken, omitted or suffered by it in good faith in accordance with the advice of such counsel. The Stockholders shall severally, but not jointly, indemnify and hold harmless, in accordance with their respective Pro Rata Share, the Stockholders’ Representative from any and all losses, Liabilities and expenses (including the fees and expenses of counsel) arising out of or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. execution and performance of this Agreement.
(g) The Buyer rights to indemnification and immunities of a Stockholders’ Representative under this Agreement shall be entitled to deal exclusively with survive the resignation or removal of the Stockholders’ Representative on all matters relating to and the Closing or termination of this Agreement, . All rights and shall be entitled to rely conclusively (without further evidence powers of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personunder this Agreement shall survive the Closing or termination of this Agreement.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints by signing this Agreement, designates Mich▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇, in the event that Mich▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to act as sole and exclusive serve or resigns, Gera▇▇ ▇. ▇▇▇▇▇▇▇) ▇▇ be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any and all determinations) which may be required or permitted act of any Stockholder, by this Agreement to be taken operation of law, whether by such Persons; Stockholder's death or any other event.
(iid) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to Notwithstanding the foregoing. Any such actions taken, the Stockholder Representative shall inform each Stockholder of all notices received, and of all actions, decisions, notices and exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ Stockholder Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder act as directed by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Stockholders holding a majority interest in the Stockholders’ Representative Escrow Property (as fully binding upon each such Persondefined in Section 4.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs by the execution of this Agreement (and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ each other Seller upon execution of such other instrument of similar import entered into by such other Seller), agrees that the Stockholders Representative shall be authorized to act as sole on behalf of such Sellers for all purposes of this Agreement with the full and exclusive representative for power and authority to represent and bind such Stockholder Seller with respect to all matters arising under and pursuant to this Agreement and the transactions contemplated hereby (including the “Stockholders’ Representative”) and authorizes and directs taking by the Stockholders’ Stockholders Representative to (i) take of any and all actions and the making of any decisions required or permitted to be taken) on such Seller's behalf (includinga) to consummate the transactions contemplated herein, without limitation(b) to pay such Seller's expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date hereof), executing (c) to disburse any funds received hereunder to such Seller and delivering each other Seller, (d) to endorse and deliver any documentscertificates or instruments representing the Shares, incurring any costs the Options and expenses the Class B Warrants and execute such further instruments of assignment as the Purchaser shall reasonably request, (e) to execute and deliver on behalf of such Stockholder and making Seller any and amendment or waiver hereto, (f) to take all determinations) which may be required or permitted by this Agreement other actions to be taken by or on behalf of such Persons; Seller in connection herewith, (g) to withhold funds to pay Seller related expenses and obligations, and (h) to do each and every act and exercise any and all rights which such Seller or the Sellers collectively are permitted or required to do or exercise under this Agreement).
(b) As part of the power and authority granted under this Section 10.19 and not in limitation, each Seller specifically consents to the Stockholders Representative's exercise of the power (i) to bring, defend and/or resolve any claim made pursuant to Article X, (ii) exercise to agree to, negotiate, enter into settlements and compromises of, to bring suit or seek arbitration and to comply with orders of courts and awards of arbitrators with respect to such other rightsclaims, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to take all actions necessary in the judgment of the Stockholders Representative for the accomplishment of the foregoing. Any such actions taken, exercises .
(c) Neither the Stockholders Representative nor any agent employed by it shall incur any liability to any Seller by virtue of rights, power the failure or authority, and any decision or determination made by refusal of the Stockholders’ Stockholders Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted reason to be taken under or in connection with this Agreement or consummate the transactions contemplated hereby or therebyrelating to the performance of its other duties hereunder, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on omissions constituting fraud or bad faith.
(d) In all matters relating to this Agreementin which action by the Stockholders Representative is required or permitted, and the Purchaser shall be entitled to rely conclusively on any and all action taken by the Stockholders Representative under this Agreement without any liability to, or obligation to inquire of, any of the Sellers.
(without further evidence e) Notwithstanding anything herein to the contrary, (i) in no event shall the Stockholders Representative (A) take any action in respect of any kind whatsoeverof the foregoing that does not, in all respects, treat each Seller in a manner which is pro rata (based on its ownership of the Company in the aggregate, including all Shares, Options and Warrants, held by such Seller immediately prior to the Closing calculated on a fully diluted basis) or (B) amend this Agreement in any manner whatsoever to expand, increase or alter any Seller's liability and (ii) in no event shall a Seller's liability with respect to any of the foregoing exceed (together with all related liabilities and amounts paid in respect of Sections 10.1 and 10.2 herein or any other section of this Agreement) such Seller's pro rata portion, based on any document executed the ownership of the Company in the aggregate, including all Shares, Options and Warrants, held by or purported such Seller immediately prior to be executed the Closing calculated on behalf a fully-diluted basis, of any Stockholder by the Stockholders’ Representative, and liability for such amounts. (signatures on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.next page)
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) By virtue of the execution of the applicable Closing Agreements, each of the Company Stockholders has irrevocably constituted and appointed, Kohlberg CPC Rep, L.L.C. (and by its execution of this Agreement as Stockholders’ Representative, Kohlberg CPC Rep, L.L.C. hereby irrevocably authorizesaccepts its appointment) as the true, directs exclusive and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole lawful agent and exclusive representative for such Stockholder attorney-in-fact (the “Stockholders’ Representative”) of the Company Stockholders to act in the name, place and authorizes stead of the Company Stockholders in connection with the transactions contemplated by this Agreement, in accordance with the terms and directs provisions of this Agreement, and to act on behalf of the Company Stockholders in any action, suit or proceeding 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 by this Agreement, including the power:
(i) to act for the Company Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise or settle any indemnity claim on behalf of the Company Stockholders and to transact matters of litigation or other actions, suits or proceedings;
(ii) to execute and deliver all amendments, waivers, ancillary agreements, stock powers, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
(iii) to do or refrain from doing any further act or deed on behalf of the Company Stockholders that the Stockholders’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement as fully and completely as the Company Stockholders could do if personally present; and
(iv) to receive service of process on behalf of any Company Stockholder in connection with any claims under this Agreement.
(b) The Stockholders’ Representative may be removed or replaced only upon delivery of written notice to the Surviving Corporation by the Company Stockholders holding at least a majority of outstanding shares of Company Common Stock as of immediately prior to the Effective Time. Parent, the 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.
(c) The Stockholders’ Representative will incur no liability to any Company Stockholder with respect to any action taken or suffered by any party in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Stockholders’ Representative to be genuine and to have been signed by the proper Person (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant shall have no responsibility to this Agreement; determine the authenticity thereof), nor for any other action or inaction, except its own gross negligence, bad faith or willful misconduct.
(d) The Company Stockholders shall severally, in accordance with and (iii) exercise such rights, power and authority as are incidental limited to the foregoing. Any such actions taken, exercises of rights, power or authoritytheir applicable Pro Rata Share, and not jointly, indemnify and hold harmless the Stockholders’ Representative against any decision loss, liability or determination made expense incurred by the Stockholders’ Representative consistent therewith(without gross negligence, shall be absolutely and irrevocably binding bad faith or willful misconduct on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the part of the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under Representative) arising out of or in connection with this Agreement the acceptance or administration of the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with duties hereunder, including the Stockholders’ Representative on all matters relating to this Agreement, reasonable fees and shall be entitled to rely conclusively (without further evidence expenses of any kind whatsoeverlegal counsel (or other advisor) on any document executed by or purported to be executed on behalf of any Stockholder retained by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs designates and appoints ▇▇. M▇▇▇▇ ▇▇▇▇▇▇ to act as sole the exclusive agent, attorney-in-fact and exclusive representative for such Stockholder (the “Stockholders’ Representative”) for and authorizes on behalf of such Stockholder, with full power of substitution, to:
(a) receive and directs the Stockholders’ Representative to (i) take accept service of any and all actions notices, requests and other communications to be delivered to any Stockholder in accordance with the terms of this Agreement, including, without limitation, service of all legal process;
(b) send to the Parent or its successors or permitted assigns any and all notices, requests and other communications in accordance with the terms of this Agreement;
(c) defend all indemnity claims, consenting to, compromising or settling all indemnity claims, and otherwise acting pursuant to Article VIII; and
(d) be each Stockholder’s sole and exclusive representative to communicate, respond, consent, answer or otherwise act with respect to any matter arising out of or involving this Agreement (including, without limitation, executing with respect to all notices, requests and delivering demands by the Parent claiming for indemnification under this Agreement). In the event of, and from the time of, the above named Stockholders’ Representative’s or any documentssuccessor’s resignation, incurring any costs death or disability, the Parent shall continue to address all notices, requests and expenses other communications to such Stockholders’ Representative until there is delivered to the Parent an instrument duly executed by the holders of a majority of the Common Stock presently held by the Stockholders or their respective legal representatives appointing a successor to the Stockholders’ Representative, on behalf all of such Stockholder the same terms and making any and all determinations) which may be required or permitted by this Agreement to be conditions as set forth herein. All actions taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power the foregoing appointment and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely binding upon each Stockholder and irrevocably binding on each such Person Stockholder’s respective heirs, executors, administrators, successors and assigns as if such Person personally had taken such action, exercised such rights, power or expressly ratified and confirmed in writing by each Stockholder. The authority or made such decision or determination in such Person’s capacitygranted hereunder is deemed to be coupled with an interest. Each Stockholder agrees that The Parent shall have the Stockholders’ Representative shall not be liable for right to rely on any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personbeing the act or omission of the Stockholders, without the need for any inquiry. The Stockholders agree that the Stockholders’ Representative shall have no liability to the Stockholders for any Loss which they may incur as a result of any action taken in good faith hereunder, or under any other document entered into in connection herewith, and the Stockholders jointly and severally agree to indemnify and hold the Stockholders’ Representative free and harmless against any and all Losses which the Stockholders’ Representative may sustain as a result of any action taken in good faith hereunder or under any other document entered into in connection herewith.
Appears in 1 contract
Sources: Merger Agreement (Sbarro Inc)
Stockholders’ Representative. Each (a) By executing and delivering this Agreement, each Stockholder hereby irrevocably authorizesmakes, directs constitutes and appoints H. ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ his or her true and lawful agent and attorney-in-fact (the "Stockholders' Representative") with full power and authority (except as provided below) to act hereunder in his sole discretion, individually, or through a duly appointed successor attorney-in-fact, all as sole hereinafter provided, in the name of and exclusive representative for and on behalf of the each Stockholder, as fully as could each such Stockholder (if present and acting in person, with respect to all matters in connection with the “Stockholders’ Representative”) consummation of the transactions contemplated by this Agreement, the sale of the Shares to the Buyer, and authorizes the exercise or waiver of any right and directs performance of any obligation of the Stockholders’ Representative to Stockholders in connection therewith, including, but not limited to, the right, power and authority to:
(i) amend this Agreement and take any and all actions (as may be necessary or deemed to be desirable by the Stockholders' Representative on behalf of the Stockholders, with respect to this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, executing the execution and delivering any documentsdelivery of certificates, incurring any costs consents, waivers, and expenses notices on behalf of such Stockholder the Stockholders;
(ii) determine whether the Buyer has performed its obligations hereunder and making whether the conditions to the Stockholders' obligation to close set forth in Section 6.3 of this Agreement have been satisfied and to waive any conditions to Closing in his sole discretion;
(iii) retain legal counsel, as appropriate, in connection with any and all determinationsmatters referred to herein to represent the Stockholders in connection with the transactions referred to in this Agreement; and
(iv) which may be required take or permitted by this Agreement cause to be taken by any and all further actions, and execute and deliver or cause to be executed and delivered, any and all such Persons; (ii) exercise agreements, instruments, documents, certificates and stock powers, with such other rights, power and authority, changes as are authorized, delegated and granted to the Stockholders’ ' Representative pursuant in his sole discretion may approve (such approval to be evidenced conclusively by his signature 39 to this Agreement; and (iii) exercise such rights, power and authority as are incidental may be necessary or deemed to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made be desirable by the Stockholders’ Representative consistent therewith' Representative, shall be absolutely to effectuate, implement and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or otherwise carry out the transactions contemplated hereby or therebyby this Agreement.
(b) By their execution of this Agreement, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The each Stockholder also agrees that:
(i) the Buyer shall be entitled able to deal exclusively with rely conclusively on the instructions given, and decisions made, and other actions taken by the Stockholders’ ' Representative on all matters relating to under this Agreement, and no party under this Agreement 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;
(ii) No Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud by the Stockholders' Representative;
(iii) the provisions of this Section 8.12 are independent and severable, are irrevocable and coupled with an interest and shall be entitled enforceable under all circumstances unless prohibited by law;
(iv) the provisions of this Section 8.12 shall be binding upon and inure to rely conclusively (without further evidence any successor in interest to or permitted assigns of any kind whatsoeverStockholder; and
(v) on the authority of the Stockholders' Representative and any document executed by substitute or purported to be executed on behalf attorney-in-fact for such Stockholders' Representative shall survive the Closing and any death or legal disability of any Stockholder by the Stockholders’ Representative, and as a power coupled with an interest. [signatures on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.following page]
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “The Stockholders’ Representative”) Representative is a corporation duly organized, validly existing and authorizes in good standing under the Laws of the State of Delaware. The Company has made available to Parent complete and directs correct copies of the certificate of incorporation and by-laws of the Stockholders’ Representative to (i) take any as currently in effect. All of the issued and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf outstanding capital stock of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to is, as of the date of this Agreement; and (iii) exercise such rights, directly or indirectly owned by the Company. The Stockholders’ Representative has all requisite corporate power and authority as are incidental and has taken all corporate action necessary in order to execute, deliver and perform its obligations under this Agreement and the CVR Agreement. This Agreement has been, and the CVR Agreement will be, duly executed and delivered by the Stockholders' Representative and constitutes, or will constitute, valid and binding agreements of the Stockholders' Representative, enforceable against it in accordance with their respective terms, subject to the foregoingBankruptcy and Equity Exception. Any such actions takenExcept for filings and notices (A) under the HSR Act, exercises of rights(B) under the Communications Act, power or authorityincluding any FCC Rules, and (C) under any decision applicable state public utility Laws and rules, regulations and orders of any state PUCs or determination similar foreign public utility Laws and rules, regulations and orders of any regulatory bodies regulating telecommunications businesses, no notices, reports or other filings are required to be made by the Stockholders’ Representative consistent therewithwith, shall nor are any consents, registrations, approvals, permits or authorizations required to be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that obtained by the Stockholders’ Representative shall not be liable for from, any actions taken or omitted to be taken under or Governmental Entity in connection with the execution, delivery and performance of this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductCVR Agreement. The Buyer shall be entitled to deal exclusively with execution, delivery and performance of this Agreement and the CVR Agreement by the Stockholders’ Representative on all matters relating to this Agreementdo not, and shall be entitled to rely conclusively will not, constitute or result in (without further evidence x) a breach or violation of, or a default under, the certificate of any kind whatsoever) on any document executed by incorporation or purported to be executed on behalf by-laws of any Stockholder by the Stockholders’ Representative, and or (y) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under or the creation of an Encumbrance on any other action taken or purported to be taken on behalf of any such Person by the assets of the Stockholders’ Representative as fully pursuant to, any Contract binding upon each such Personthe Stockholders’ Representative or any Laws to which the Stockholders’ Representative is subject.
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Stockholders’ Representative. Each Stockholder 6.01 The Stockholders, and each of them, hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs appoint the Stockholders’ ' Representative as their agent to (i) take any represent, act for and on behalf of, and bind each of the Stockholders in the performance of all actions (of their obligations arising from or relating to this Escrow Agreement, including, without limitationlimitation (a) the execution and delivery of any document, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be certificate or agreement required or permitted by under this Escrow Agreement to be taken delivered by the Stockholders; (b) the negotiation and settlement of claims of Vizacom in respect of the Escrowed Property and the making of any objection to such Personsclaims; and (c) the representation of the Stockholders at any arbitration or litigation in respect of the foregoing; (ii) exercise such other rights, power give and authority, as are authorized, delegated receive notices and granted to the Stockholders’ Representative receive service of process under or pursuant to this Escrow Agreement; and (iii) exercise such rightsto represent, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authorityact for, and any decision bind each of the Stockholders in the performance of all of their obligations arising from or determination made by related to this Escrow Agreement. The Stockholders' Representative hereby accepts such appointment.
6.02 In the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees event that the Stockholders’ ' Representative shall not resign or otherwise be liable unable to fulfill its duties hereunder, a successor Stockholders' Representative shall be selected by the Stockholders entitled to a majority of the Escrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for any actions taken reason, any such Stockholders' Representative may be so removed or omitted to be taken under or in connection with this Agreement or replaced by the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be Stockholders entitled to deal exclusively with receive a majority of such Escrowed Property. Any decision, act, consent or instruction of the Stockholders’ ' Representative on all matters relating to this Agreement, shall constitute a decision of the Stockholders and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by conclusive and binding upon the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of Vizacom and the Escrow Agent may rely upon any such Person by decision, act, consent or instruction of the Stockholders’ ' Representative as fully binding upon each such Personbeing the decision, act, consent or instruction of the Stockholders.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Stockholders’ Representative. Each Stockholder hereby (a) By virtue of the adoption and approval of this Agreement, and by receiving the benefits thereof, including any consideration payable hereunder, each Equityholder shall be deemed to have irrevocably authorizesagreed, directs appointed and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act approved Shareholder Representative Services LLC as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative as of the Closing empowering it to act, with full power of substitution, as the representative by and for the benefit of the Equityholders, and as the exclusive agent and attorney-in-fact to act on behalf of each Equityholder for all purposes in connection with Agreement, the Transaction Documents and any related agreements including the power and authority (i) to pay the Equityholders’ expenses incurred in connection with this Agreement, (ii) to the extent applicable, to direct the disbursement any funds received hereunder on behalf of or to each Equityholder, (iii) to hold back from disbursement to all of the Equityholders collectively any such funds to the extent Stockholders’ Representative reasonably determines may be necessary or required under the terms and conditions of this Agreement or applicable Law or may be required for future expenses or obligations, including with respect to the matters listed in Schedule 3.20 of the Disclosure Schedule, (iv) to execute and deliver on behalf of each Equityholder all documents contemplated herein, any amendment or waiver hereto, and any consents, in each case, with such modifications or changes as to which the Stockholders’ Representative, in its sole discretion, determines is desirable, (v) 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 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 Contemplated Transactions, (includingvi) to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interest of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement and the Transaction Documents, without limitation(vii) to refrain from enforcing any right of the Equityholders or any of them or the Stockholders’ Representative arising out of, executing under or in any manner relating to this Agreement and delivering Transaction Documents; provided, however, that no such failure to act on the part of the Stockholders’ Representative, except as otherwise provided in this Agreement or in the Transaction Documents, shall be deemed a waiver of any documentssuch right or interest by the Stockholders’ Representative or by such Equityholders unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative, incurring (viii) to negotiate, settle, compromise and otherwise handle all disputes with Parent or any costs other Parent Indemnified Party under this Agreement, including disputes regarding any adjustment pursuant to Section 2.6 and expenses any indemnification claims made by any Parent Indemnified Party, (ix) to give and receive notices on behalf of such Stockholder the Equityholders, including any notice of an indemnification claim for which indemnification is sought by the Equityholders pursuant to Section 6.3 and making to provide notice and instructions to the Escrow Agent and to authorize disbursement of funds from the Escrow Account in accordance with this Agreement and (x) to do each and every act and exercise any and all determinations) rights which may be the Equityholders are permitted or required to do or permitted exercise under this Agreement; provided, however, that the Stockholders’ Representative shall have no obligation to act on behalf of the Equityholders. Without limiting the foregoing, the Equityholders, by this Agreement accepting the consideration payable to them hereunder, irrevocably grant unto the Stockholders’ Representative as said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or required to be taken by such Persons; (ii) exercise such other rightsdone after the Closing in connection with the Transactions as fully to all intents and purposes as the Equityholders might or could do. Such agency and proxy are coupled with an interest and are therefore irrevocable without the consent of the Stockholders’ Representative, power and authoritysurvive the death, as are authorizedincompetency, delegated bankruptcy or liquidation of any Equityholder and the consummation of the Transactions. All actions, decisions and instructions of the Stockholders’ Representative taken, made or given pursuant to the authority granted to the Stockholders’ Representative pursuant to this Agreement; Section 6.7 shall be conclusive and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authoritybinding upon each Equityholder, and any decision no Equityholder shall have the right to object to, dissent from, protest or determination otherwise contest the same. The terms and conditions of this Agreement are hereby made, and are hereby acknowledged to be, dependent on the determinations and actions that are contemplated or permitted to be made by the Stockholders’ Representative consistent therewithpursuant to this Section 6.7, and the rights of all the Equityholders shall be absolutely qualified by and irrevocably dependent upon such determinations and actions, irrespective of whether the Stockholders’ Representative is acting as an agent or power of attorney of such Equityholder. All actions, decisions and instructions of Stockholders’ Representative shall be deemed to be facts ascertainable outside this Agreement pursuant to Section 251(b) of the DGCL or under other applicable Law.
(b) All decisions, actions, consents and instructions of the Stockholders’ Representative authorized to be made, taken or given pursuant to Section 6.7(a) shall be final and binding on each upon all the Equityholders, and no such Person shall have any right to object, dissent, protest or otherwise contest the same, except for the gross negligence or willful misconduct of the Stockholders’ Representative in connection therewith. The Stockholders’ Representative shall at all times be entitled to rely on any directions received from those certain Equityholders that enter into that certain engagement letter with the Stockholders’ Representative; provided, however, that the Stockholders’ Representative shall not be required to follow any such direction and shall be under no obligation to take any action in its capacity as the Stockholders’ Representative based upon any such direction. The Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship or other special relationship with any Equityholder. The relationship created between the Stockholders’ Representative and any Equityholder shall not be construed as a joint venture or any form of partnership for purposes of U.S. federal or state law, including federal or state Tax purposes. The Stockholders’ Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(c) The Equityholders shall be bound by all actions taken and documents executed by the Stockholders’ Representative after the Closing in connection with this Agreement, the Company’s Organizational Documents, and the Escrow Agreement, and Parent and the other Parent Indemnified Parties shall be entitled to rely on any action or decision of the Stockholders’ Representative (and, for the avoidance of doubt, the Equityholders shall be responsible to Parent and the other Parent Indemnified Parties severally (and not jointly and severally) proportionately in accordance with their Pro Rata Shares for any action or inaction of the Stockholders’ Representative in its capacity as such under this Agreement, any Organizational Document, or the Escrow Agreement as if the same were taken or not taken by the Equityholders under this Agreement, such Person personally had taken such actionOrganizational Document, exercised such rights, power or authority the Escrow Agreement). Notices or made such decision communications to or determination from the Stockholders’ Representative shall constitute notice to or from each of the Equityholders. The Equityholders assign to the Stockholders’ Representative the right to pursue claims or other causes of action that may arise in such Person’s capacity. Each Stockholder agrees the Equityholders’ favor in connection with the Contemplated Transactions.
(d) In the event that the Stockholders’ Representative becomes unable to perform the Stockholders’ Representative’s responsibilities or resigns from such position, the Equityholders shall, within 10 Business Days of such resignation, removal, or vacancy, select another representative to fill such vacancy and such substituted representative shall (i) be deemed to be the Stockholders’ Representative for all purposes of this Agreement and (ii) exercise the rights and powers of, and be entitled to the indemnity, reimbursement and other benefits of, the Stockholders’ Representative.
(e) The Stockholders’ Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any actions taken action or omitted omission pursuant to be taken under the advice of counsel. The Equityholders shall indemnify the Stockholders’ Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement Agreement, the Contemplated Transactions and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the transactions contemplated hereby event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or thereby, except for such actions taken or omitted to be taken resulting from willful misconduct of the Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with , the Stockholders’ Representative on all matters relating will reimburse the Equityholders 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 Stockholders’ Representative Expense Fund and (ii) any other funds that become payable to the Equityholders under this AgreementAgreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, and shall that while the Stockholders’ Representative may be entitled paid from the aforementioned sources of funds, this does not relieve the Equityholders from their obligation to rely conclusively (without further evidence of any kind whatsoever) on any document executed by promptly pay such Representative Losses as they are suffered or purported incurred. In no event will the Stockholders’ Representative be required to be executed advance its own funds on behalf of the Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any Stockholder restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Equityholders 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 the termination of this Agreement. The indemnity obligations of this Section 6.7(e) shall survive the Closing, the resignation, replacement or removal of the Stockholders’ Representative or the termination of this Agreement.
(f) Each of Parent (on its own behalf and on behalf of the other Parent Indemnified Parties), Merger Sub and the Company acknowledges that the Stockholders’ Representative is a party to this Agreement solely for purposes of serving as the “Stockholders’ Representative” hereunder and no claim shall be brought by or on behalf of Parent or any other Parent Indemnified Parties or, after the Effective Time of Merger I, the Surviving Company or its Subsidiaries, against the Stockholders’ Representative with respect to this Agreement or the agreements or Contemplated Transactions or any certificate, opinion, instrument or other document delivered hereunder (with it being understood that any covenant or agreement of or by the “parties” or “each of the parties” shall not be deemed to require performance by, or be an agreement of, the Stockholders’ Representative unless performance by the Stockholders’ Representative is expressly provided for in such covenant or the Stockholders’ Representative expressly so agrees in writing, but the Stockholders’ Representative shall receive the benefit of any provision of the “parties” or “each of the parties” including with respect to the miscellaneous provisions set forth in this Section 6.7).
(g) At the Effective Time of Merger I, Parent shall deliver to the Stockholders’ Representative the Stockholders’ Representative Expense Fund, to be held by the Stockholders’ Representative to cover and reimburse the fees, expenses and other monetary obligations incurred by the Stockholders’ Representative, and . The Equityholders will not receive any interest or earnings on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as fully binding upon each practicable following the completion of the Stockholders’ Representative’s responsibilities, the Stockholders’ Representative will deliver any remaining balance of the Stockholders’ Representative Expense Fund to the Paying Agent for further distribution to the Equityholders. With respect to the Tendering Stockholders, the Paying Agent shall pay such PersonStockholder the portion of the Stockholders’ Representative Expense Fund attributable to such Stockholder with respect to the Pro Rata Share of such Stockholder, which amount shall be payable by wire transfer of immediately available funds to the account designated in such Stockholder’s Letter of Transmittal. With respect to Tendering Optionholders, the Paying Agent shall pay the aggregate amount, with respect to the Pro Rata Share of such Optionholders, to the Surviving Company and Parent shall cause the Surviving Company to pay to such Optionholders, through the Surviving Company’s payroll system (with respect to Optionholders who are employed by the Company Group at the time of such payment) or pursuant to the payment instructions set forth in such holder’s Option Surrender Form (with respect to Optionholders who are not employed by the Company Group at the time of such payment), such amounts in accordance with their Pro Rata Share less any required withholding Taxes. For tax purposes, the Stockholders’ Representative Expense Fund will be treated as having been received and voluntarily set aside by the Equityholders at the time of Closing.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer certain matters contemplated hereby irrevocably authorizesfollowing the Closing, directs 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 Section 2.6(i), Section 2.9, and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ Section 9, the Participating Securityholders, by the adoption of this Agreement, execution of the Joinder, execution of a Warrant Cancellation Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the Letters of Transmittal, shall be deemed to act have designated AEP Holdings LLC as sole and exclusive the representative for such Stockholder of the Participating Securityholders (the “Stockholders’ Representative”).
(b) and authorizes and directs In the event the Stockholders’ Representative dies, becomes unable to perform its responsibilities hereunder or resigns from such position (which the Parties agree it may do any time and for any reason, including if the Stockholders’ Representative Reserve is depleted), the Required Stockholders shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders’ Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement, execution of the Joinder, execution of a Warrant Cancellation Agreement, acceptance of consideration under this Agreement and/or the delivery of the Letter of Transmittal, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) take any the Stockholders’ Representative shall be appointed and constituted the true and lawful attorney-in-fact of each Participating Securityholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and in general to do all actions things and to perform all acts including (including, without limitation, A) executing and delivering any documentsagreements, incurring any costs certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement, (B) authorizing the delivery of cash or LEC Stock from the Escrow Fund, (C) agreeing to, negotiating, giving and expenses receiving notices in relation to, entering into settlements and compromises of, and complying with arbitration awards and orders of courts with respect to this Agreement, the Escrow Agreement and the Payment Agent Agreement, and (D) taking all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. By execution of this Agreement, the Stockholders’ Representative hereby accepts such appointment;
(ii) the Stockholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of such Stockholder and making the Participating Securityholders (in the name of any or all of the Participating Securityholders or otherwise) any and all determinationsdocuments that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Stockholders’ Representative may, in its sole discretion, determine to be appropriate, (B) which may be required or permitted by give and receive notices and other communications relating to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Securityholder individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or otherwise) to resolve or settle all matters and disputes arising out of or related to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the transactions contemplated hereby and thereby, and (D) engage attorneys, accountants, financial and other advisors, paying agents and other persons necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing; provided, however, that the Stockholders’ Representative shall cause all such Persons to be taken bound by reasonable and customary confidentiality provisions and shall cause LEC and its Affiliates to be named third-party beneficiaries of such Persons; provisions with the right to enforce such provisions;
(iiiii) exercise such other rightsLEC, power the Surviving Corporation, the Payment Agent, the Escrow Agent and authority, as are authorized, delegated and granted their respective agents will be entitled to rely conclusively on any Allocation Schedule delivered by the Stockholders’ Representative pursuant to this Agreement; Section 2.6(i), or the instructions and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power decisions given or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithas to any of the matters described in this Section 2.8, and no party shall have any cause of action against any of the foregoing Persons for any action taken or not taken in reliance upon any such instructions or decisions and they hereby waive any such causes of action;
(iv) all actions, decisions and instructions of the Stockholders’ Representative, including any payment amounts set forth on any Allocation Schedule prepared by Stockholders’ Representative pursuant to Section 2.6(i), shall be absolutely conclusive and binding upon each of the Participating Securityholders, and no Participating Securityholders shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or instruction given by the Stockholders’ Representative under this Agreement, except for common law fraud or for willful misconduct on the part of the Stockholders’ Representative;
(v) the provisions of this Section 2.8 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Securityholder may have in connection with the transactions contemplated by this Agreement; and
(vi) the provisions of this Section 2.8 shall be binding upon the executors, heirs, legal representatives successors and assigns of each Participating Securityholders, and any references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the successors to the Participating Securityholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(d) At the Closing, LEC shall cause to be deposited, in an account designated by the Stockholders’ Representative, One Hundred Fifty Thousand Dollars ($150,000) (the “Stockholders’ Representative Reserve”). The Stockholders’ Representative Reserve (and earnings thereon) may be applied as the Stockholders’ Representative, in its sole discretion, determines to be appropriate to defray, offset, or pay any charges, fees, costs, liabilities or expenses that the Stockholders’ Representative incurred in connection with the transactions contemplated by this Agreement and its obligations under the Escrow Agreement, including all documented third party costs of the Stockholders’ Representative and services performed by managers of the Stockholders’ Representative at prevailing billing rates, plus overhead of ten percent (10%) (the “Stockholders’ Representative Expenses”). The Participating Securityholders shall not receive interest or other earnings on the Stockholders’ Representative Reserve and the Participating Securityholders irrevocably binding transfer and assign to the Stockholders’ Representative any ownership right that they may have in any interest that may accrue on each funds held in the Stockholders’ Representative Reserve. The Participating Securityholders acknowledge that 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 Stockholders’ Representative Reserve other than as a result of its gross negligence or willful misconduct. The Participating Securityholders agree that the Stockholders’ Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholders’ Representative Reserve. The balance of the Stockholders’ Representative Reserve held pursuant to this Section 2.8(d), if any, shall, at the sole discretion of the Stockholders’ Representative and at such Person time to be determined in the sole discretion of the Stockholders’ Representative, be remitted to LEC (or its designee) for prompt distribution (and, in any case, within fifteen (15) days following receipt of the funds) to the Participating Securityholders by the Payment Agent pursuant to an Allocation Schedule prepared by the Stockholders’ Representative in accordance with Section 2.6(i). For Tax purposes, the Stockholders’ Representative Reserve shall be treated as if such Person personally had taken such actionhaving been received and voluntarily set aside by the Participating Stockholders at the time of the Closing.
(e) As between the Participating Securityholders and the Stockholders’ Representative, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken act done or omitted hereunder as Stockholders’ Representative while acting in good faith, and any act done or omitted to be taken under done pursuant to the advice of counsel or other third party consultants shall be conclusive evidence of such good faith. The Stockholders’ Representative and its members, managers, successors and assigns shall be entitled to be indemnified and held harmless and reimbursed by the Participating Securityholders against any loss, liability or expense arising out of or in connection with this Agreement the acceptance or the transactions contemplated hereby administration of its duties hereunder or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively in connection with the any Stockholders’ Representative on all matters relating to this AgreementExpenses, and shall be entitled to rely conclusively (without further evidence in each case as such loss, liability or expense is incurred or suffered; provided, that in the event it is finally adjudicated that such loss, liability or expense or any portion thereof was primarily caused by the gross negligence or willful misconduct of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken the Stockholders’ Representative will reimburse the Participating Securityholders the amount of such indemnified loss, liability or purported expense attributable to such gross negligence or willful misconduct. Any such losses, liabilities or expenses of the Stockholders’ Representative shall be taken on behalf of any such Person recovered by the Stockholders’ Representative as fully binding upon each in the following order: (i) first, from the Stockholders’ Representative Reserve, to the extent any funds remain in such Personfund; or (ii) second, from the Escrow Fund, but solely to the extent of any amounts released to the Participating Securityholders thereunder. No provision of this Agreement, the Escrow Agreement or the Payment Agent Agreement shall require the Stockholders’ Representative to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges under this Agreement, the Escrow Agreement or the Payment Agent Agreement.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints ▇(a) D▇. ▇▇▇▇ P▇▇▇▇▇ ▇, a director of the Company immediately prior to act the Effective Time, is hereby appointed as sole the representative of the Company Stockholders, from and exclusive representative for such Stockholder after the Effective Time, in connection with each Transaction Document and the Transactions (the “Stockholders’ Representative”) and authorizes and directs the ). Stockholders’ Representative shall have full power and authority to (i) represent all of the Company Stockholders and their successors, assigns, heirs and representatives with respect to all matters arising under the Transaction Documents and all actions taken by Stockholders’ Representative thereunder shall be final, conclusive and binding upon all of the Company Stockholders and their successors, assigns, heirs and representatives as if expressly confirmed and ratified in writing by each of them, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Stockholders’ Representative shall take any and all actions which he believes are necessary or appropriate under the Transaction Documents for and on behalf of the Company Stockholders, as fully as if the Company Stockholders were acting on their own behalf, including executing the Escrow Agreement as Stockholder Representative, giving and receiving any notice or instruction permitted or required under any of the Transaction Documents by Stockholders’ Representative or any Company Stockholder (including, without limitation, executing Article VII hereof), interpreting all of the terms and delivering provisions of the Transaction Documents, authorizing payments to be made with respect thereto, dealing with Parent and the Escrow Agent under the Transaction Documents with respect to all matters arising under the Transaction Documents, taking any documentsand all other actions specified in or contemplated by the Transaction Documents and engaging counsel, incurring any accountants or other advisors in connection with the foregoing matters. All costs and expenses on behalf incurred by Stockholders’ Representative in fulfillment of such Stockholder his duties hereunder (including the fees and making any and all determinationsexpenses of counsel) which may shall be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to paid from the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rightsExpense Fund. Without limiting the generality of the foregoing, Stockholders’ Representative shall have full power and authority as are incidental to interpret all the terms and provisions of the Transaction Documents and to consent to any amendment thereof on behalf of all of the Company Stockholders and their successors, assigns, heirs and representatives.
(b) Notwithstanding the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithshall (i) give each Company Stockholder copies of any demands, shall be absolutely notices or other communications received by him and irrevocably binding notice or any proposed or actual approvals, waivers, amendments, requests, consents and instructions, in all cases insofar as relevant to such Company Stockholder, and (ii) not take any action for or on each behalf of any Company Stockholder that would, directly or indirectly, in any way (A) reduce the portion of the Merger Consideration payable to such Person as if such Person personally had taken such actionCompany Stockholder, exercised such (B) terminate any Transaction Document, (C) adversely affect the rights, power obligations or authority financial position of such Company Stockholder under any Transaction Document or made the reputation of such decision Company Stockholder, (D) disproportionately and adversely affect such Company Stockholder or determination affect such Company Stockholder differently and adversely from the majority of other Company Stockholders or (E) take any regulatory decisions which would affect such Company Stockholder, other than in the ordinary course of business of the Surviving Corporation.
(c) Stockholders’ Representative shall have no liability to any Company Stockholder, the Surviving Corporation, Parent or Purchaser for any action taken or omitted to be taken hereunder, unless such Person’s capacityliability is determined by a judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Stockholders’ Representative. Each Stockholder agrees that Stockholders’ Representative may, in all questions arising under any Transaction Document, conclusively rely on the advice of counsel, and Stockholders’ Representative shall not be liable to the Company Stockholders for anything done, omitted or suffered in good faith by Stockholders’ Representative based on such advice.
(d) From and after the Effective Time, Parent shall protect, defend, indemnify and hold harmless Stockholders’ Representative (acting in such capacity after the Effective Time) from and against any actions taken and all Damages directly or omitted to be taken under indirectly arising out of or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from performance by Stockholders’ Representative’s Representative of his duties and obligations pursuant to each Transaction Document unless such liability is determined by a judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconductmisconduct of Stockholders’ Representative (acting in such capacity after the Effective Time). The Buyer Stockholders’ Representative shall be entitled to deal exclusively with the indemnification by Parent notwithstanding that any action taken or not taken by Stockholders’ Representative on all matters relating to this Agreementmay conflict with, and shall or may be entitled to rely conclusively (without further evidence opposed to, the best interests of any kind whatsoever) on any document executed by Parent or purported to be executed its stockholders, it being understood that Stockholders’ Representative is acting on behalf of any Stockholder by the Company Stockholders in his capacity as Stockholders’ Representative, and on any other action taken or purported to be taken not on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonParent.
Appears in 1 contract
Sources: Merger Agreement (Radio One Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes(a) Upon the Effective Time and without further act of any Stockholder, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder Vasa (the “"Stockholders’ ' Representative”") shall be appointed as agent and authorizes attorney-in-fact for each Stockholder, for and directs on behalf of each such Stockholder, with full power of substitution, and with full power and authority to represent the Stockholders’ Representative Stockholders and their successors with respect to (i) take any all matters arising under this Agreement, and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by the Stockholders' Representative hereunder shall be binding upon such Persons; (ii) exercise such other rightsStockholders and their successors as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the 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" 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 any payments to be made with respect thereto.
(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 are authorizedhereinafter provided. In case of such resignation, delegated or in the event of the death or inability to act of the Representative, a successor shall be named in accordance with an agreement by and granted between the Stockholders of even date herewith (the "Stockholders' Agreement"). 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 his duties under this Agreement, or upon the claimed failure to perform his duties hereunder, the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ ' Representative shall not be liable to the Stockholders or anyone else for any damages, losses or expenses which they may incur as a result of any act, or failure to act under this Agreement; provided, however, that the Stockholders' 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. Accordingly, the Stockholders' Representative shall not incur any such liability with respect to (i) any action taken or omitted to be taken under 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 in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions (ii) any action taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to in reliance upon any document, including any written notice or instructions provided for in this Agreement, not only as to its due execution and shall be entitled to rely conclusively (without further evidence the validity and effectiveness of its provisions, but also as to the truth and accuracy of any kind whatsoever) on any document executed by or purported information contained therein, which the Stockholders' Representative shall in good faith believe to be executed on behalf genuine, to have been signed or presented by the purported proper person or persons and to conform with the provisions of this Agreement. The limitation of liability provisions of this Section shall survive the termination of this Agreement and the resignation of the Stockholders' Representative. The Stockholders shall severally indemnify the Stockholders' Representative and hold him harmless against any Stockholder loss, liability or expense (including any expenses of legal counsel retained by the Stockholders’ ' Representative) incurred without willful default, and gross negligence or bad faith on any other action taken or purported to be taken on behalf the part of any such Person by the Stockholders’ ' Representative as fully binding upon each such Personand arising out of or in connection with the acceptance or administration of his duties hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs the designates Stockholders’ Representative as attorney-in-fact and agent to (i) take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses act on behalf of such Stockholder in any amendment of or litigation or dispute involving this Agreement or any other Transaction Documents and making to do or refrain from doing all such further acts and things, and to execute all such documents, as Stockholders’ 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 to consummate the transactions contemplated by this Agreement;
(ii) to negotiate, 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 (it being understood that such Stockholder shall execute and deliver any such documents which Stockholders’ Representative agrees to execute);
(iii) to determine any adjustment to the Net Initial Purchase Price as provided in Section 2.2;
(iv) to enforce and protect the rights and interest of such Stockholder arising out of or under or in any manner relating to this Agreement and each other agreement, document, instrument or certificate referred to herein or therein or the transactions provided for herein or therein (including in connection with any and all determinationsclaims for indemnification pursuant to Article IX or Article X);
(v) to enforce payment of amounts due to such Stockholder under this Agreement on behalf of such Stockholder, in the name of Stockholders’ Representative or, if Stockholders’ Representative so elects, in the name of such Stockholder;
(vi) to refrain from enforcing any right of such Stockholder arising out of or under or in any manner relating to this Agreement;
(vii) 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;
(viii) to receive any funds on the Stockholders’ behalf and direct the making of payments under this Agreement equitably among the Stockholders in accordance with each Stockholder’s Equity Ownership Percentage; and
(ix) to take all actions which under this Agreement may be required taken by the Stockholders and to do or permitted by refrain from doing any further act or deed on behalf of the Stockholders 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.
(b) Stockholders’ Representative will not be liable for any act taken or omitted by it as permitted under this Agreement, except if such act is taken or omitted in bad faith or by willful misconduct. Stockholders’ Representative will also be fully protected in relying upon any written notice, demand, certificate or document that it in good faith believes to be genuine (including facsimiles thereof).
(c) Each Stockholder, severally but not jointly, shall indemnify Stockholders’ Representative for, and to hold Stockholders’ Representative harmless against, any loss, liability or expense incurred without willful misconduct or bad faith on the part of Stockholders’ Representative, arising out of or in connection with Stockholders’ Representative’s carrying out its duties under this Agreement, including costs and expenses of successfully defending Stockholders’ Representative against any claim of liability with respect thereto. 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 counsel.
(d) Buyer shall have the right to rely upon all actions taken or omitted to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; , all of which actions and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, omissions shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully legally binding upon each such PersonStockholder.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesconstitutes and appoints, directs ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder ▇, jointly (the “Stockholders’ Representative”), as such Stockholders’ attorneys-in-fact and agents in connection with the transactions contemplated by this Agreement. This power is irrevocable and coupled with an interest, and shall not be affected by the death, incapacity, illness or other inability to act of any Stockholder.
(b) Each Stockholder hereby irrevocably grants the Stockholders’ Representative full power and authorizes authority on behalf of such Stockholder:
(i) to execute and directs deliver, and to accept delivery of the Escrow Agreement and such documents as may be deemed by the Stockholders’ Representative, in its sole discretion, to be appropriate to consummate the transactions contemplated by this Agreement.
(ii) to (A) dispute or refrain from disputing any claim made by Buyer under this Agreement; (B) negotiate and compromise any dispute that may arise under, and to exercise or refrain from exercising any remedies available under, this Agreement and (C) execute any settlement agreement, release or other document with respect to such dispute or remedy;
(iii) to give or agree to any and all consents, waivers, amendments or modifications deemed by the Stockholders’ Representative, in its sole discretion, to be necessary or appropriate under this Agreement, and to execute and deliver any documents that may be necessary or appropriate in connection therewith; provided, however, that this shall not authorize or empower the Representative to do or cause to be done any of the foregoing (i) in a manner that improperly discriminates between or among the Stockholders; or (ii) as to any matter insofar as such matter relates solely and exclusively to a single Stockholder. Without implying that other actions would constitute an improper discrimination, each of the Stockholders agrees that discrimination between or among Stockholders solely on the basis of the respective number of Shares held by each Stockholder shall not be deemed to be improper;
(iv) to enforce any claim against Buyer arising under this Agreement;
(v) to engage attorneys, accountants and agents at the expense of Stockholders; and
(vi) to give such instructions and to take such action or refrain from taking such action as the Stockholders’ Representative deems, in its sole discretion, necessary or appropriate to carry out the provisions of, and to consummate the transactions contemplated by, this Agreement or the Escrow Agreement. [Confidential Treatment Requested—]
(c) Each Stockholder hereby agrees that:
(i) the Company and Buyer shall be entitled to rely on any and all action taken by the Stockholders’ Representative, under this Agreement notwithstanding any dispute or disagreement among Stockholders or the Stockholders’ Representative without any liability to, or obligation to inquire of, any Stockholder or the Stockholders’ Representative, notwithstanding any knowledge on the part of the Company or Buyer of any such dispute or disagreement;
(ii) the authority of the Stockholders’ Representative, as described in this Agreement, shall be effective until the rights and obligations of the Stockholders’ Representative under this Agreement shall terminate by virtue of the termination of any and all rights and obligations of such Stockholder to Buyer under this Agreement;
(iii) if the Stockholders’ Representative resigns or is removed or otherwise ceases to function in his capacity as such for any reason whatsoever, the holders of a majority in interest of the stockholders of the Company shall have the right to appoint a member as the Stockholders’ Representative to serve as described in this Agreement (iwho shall be a Stockholder) take and, under such circumstances, Buyer and the Company shall be entitled to rely on any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and Representative;
(iiiiv) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable to any Stock for losses with respect to any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person omission by the Stockholders’ Representative pursuant to this Article X, except to the extent such losses are caused by such the Stockholders’ Representative’s gross negligence or willful misconduct.
(d) Each Stockholder agrees that, notwithstanding the foregoing, at the request of Buyer, he shall take all actions reasonably necessary or appropriate to consummate the transactions contemplated by this Agreement.
(e) The Stockholders’ Representative agrees to execute the Escrow Agreement in substantially the form attached hereto as fully binding upon each Exhibit A, with such Personchanges thereto as the Company and the Buyer reasonably agree to prior to Closing acting in good faith.
Appears in 1 contract
Sources: Merger Agreement (Optium Corp)
Stockholders’ Representative. Each Immediately upon the approval of this Agreement by Requisite Stockholder hereby irrevocably authorizesApproval, directs and appoints ▇▇. each Stockholder shall be deemed to have consented to the appointment of E▇▇▇▇ ▇▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”, as the attorney-in-fact for and on behalf of each such Stockholder, and the taking by the Stockholders’ Representative of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders’ Representative under this Agreement, including the exercise of the power to (a) execute and authorizes deliver this Agreement and directs any amendment hereof or waiver hereunder; (b) authorize delivery to APC of the Escrow Shares, or any portion thereof, in satisfaction of Indemnification Claims; (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to Indemnification Claims; (d) resolve any Indemnification Claims; and (e) take all actions necessary in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement. Accordingly, the Stockholders’ Representative has unlimited authority and power to act on behalf of each Stockholder with respect to this Agreement and the disposition, settlement or other handling of all Indemnification Claims, rights or obligations arising from and taken pursuant to this Agreement. The Stockholders will be bound by all actions taken by the Stockholders’ Representative in connection with this Agreement, and APC shall be entitled to rely on any action or decision of the Stockholders’ Representative. The Stockholders’ Representative will incur no Liability with respect to any action taken or suffered by the Stockholders’ Representative in reliance upon any notice, direction, instruction, consent, statement or other document believed by the Stockholders’ Representative to be genuine and to have been signed by the proper Person (i) and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction, except the Stockholders’ Representative’s own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement, the Stockholders’ Representative may rely on the advice of counsel, and the Stockholders’ Representative will not be liable to Stockholders for anything done, omitted or suffered in good faith by the Stockholders’ Representative based on such advice. The Stockholders’ Representative will not be required to take any and all actions (includingaction involving any expense, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf unless the payment of such Stockholder expense is made or provided for in a manner satisfactory to the Stockholders’ Representative. If and making to the extent any and all determinations) which may such appointment of the Stockholders’ Representative is revoked, such revocation shall be required or permitted by considered a breach of this Agreement and APC shall be entitled to any such resulting Losses from such revocation without regard to the Basket. The Stockholders will be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted solely responsible for any compensation payable to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made incurred by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power in the performance or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that discharge of the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to rights and obligations under this Agreement. In the event of the resignation, and shall be entitled to rely conclusively (without further evidence removal, death or incapacity of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the a successor Stockholders’ Representative as fully binding upon each such Personshall thereafter be appointed by vote or written consent of a majority of the Stockholders. Any new or successor Stockholders’ Representative will assume all rights and obligations of the initial Stockholders’ Representative under this Agreement.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby (a) The Indemnifying Parties, by adopting this Agreement and/or approving the transactions contemplated hereby, by receiving the applicable portions of the Merger Consideration pursuant to this Agreement and/or by receiving a payment pursuant to the Management Acquisition Bonus Plan, irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs appoint the Stockholders’ Representative as their agent and attorney-in-fact to act on behalf of each of the Indemnifying Parties, in connection with and to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority:
(i) for the purposes of ARTICLE VII, to give and receive notices and communications, to authorize delivery to any Parent Indemnified Party of cash from the Escrow Fund in satisfaction of claims by a Parent Indemnified Party, to agree to, negotiate, enter into settlements and compromises of, and bring suit and comply with orders and awards of courts with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing.
(ii) to execute and deliver such waivers and consents in connection with this Agreement and the consummation of the transactions contemplated hereby and thereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of the Company Stockholders and to enforce and protect the rights and interests of all Indemnifying Parties arising out of or under or in any manner relating to this Agreement, and any other document contemplated hereby, and to take any and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant believes are necessary or appropriate under this Agreement for and on behalf of the Indemnifying Parties;
(iv) to refrain from enforcing any right of the Indemnifying Parties or any of them and/or the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement or any document contemplated hereby; provided, however, that no such failure to act on the part of the Stockholders’ Representative, except as otherwise provided in this Agreement; and (iii) exercise , shall be deemed a waiver of any such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power right or authority, and any decision or determination made interest by the Stockholders’ Representative consistent therewithor by the Indemnifying Parties unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all other documents contemplated hereby.
(b) The Stockholders’ Representative may resign upon written notice to the Surviving Corporation, with or without cause, and the holders of a majority interest of the Indemnity Escrow Amount shall appoint a successor. Additionally, the Stockholders’ Representative may be changed by the Indemnifying Parties upon 10 days’ prior written notice to Parent, signed by a majority in interest of the Indemnity Escrow Amount. The outgoing Stockholders’ Representative shall be absolutely entitled to immediate reimbursement of all Stockholders’ Representative Expenses pursuant to Section 7.6(f) (with any balance in the Stockholders’ Representative Fund to inure to the benefit of the succeeding Stockholders’ Representative, and irrevocably binding with any remaining balance to be paid to the Indemnifying Parties based on each such Person their Pro Rata Portion, as if such Person personally had taken such actiondescribed in Section 7.6(f)), exercised such and in all cases subject to the terms of this Section 7.6. The successor shall be entitled to all the rights, power powers, immunities and privileges as was his or authority her predecessor, without the need of any further act or made such decision writing. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive compensation for his or determination in such Person’s capacityher services. Each Stockholder agrees that Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the Indemnifying Parties.
(c) The Stockholders’ Representative shall not be liable for any actions act done or omitted hereunder as Stockholders’ Representative, whether or not in reliance upon any notice, direction, instruction, consent, statement or other document, except to the extent arising from the gross negligence or willful misconduct of the Stockholders’ Representative (and any action taken or omitted to be taken under upon the advice of counsel shall be conclusive evidence of the absence of gross negligence or willful misconduct).
(d) A decision, act, consent or instruction of the Stockholders’ Representative with respect to the matters regarding the Escrow Fund contemplated by this Section 7.6 shall constitute a decision of all of the Company Stockholders and shall be final, binding and conclusive, and the Parent Indemnified Parties may rely upon any such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each Indemnifying Party. The Parent Indemnified Parties are hereby relieved from any Liability to any Person for any acts done by them in connection accordance with such decision, act, consent or instruction of the Stockholders’ Representative.
(e) Parent and Sub, on behalf of all Parent Indemnified Parties, hereby agree that any notice, right, or obligation required to be delivered to, performed by, or asserted by the Indemnifying Parties regarding the Escrow Fund shall be delivered to, performed by or asserted by the Stockholders’ Representative.
(f) Each of the Indemnifying Parties, by adopting this Agreement or and/or approving the transactions contemplated hereby hereby, by receiving the applicable portions of the Merger Consideration pursuant to this Agreement and/or by receiving a payment pursuant to the Management Acquisition Bonus Plan, agrees to release and hold harmless, and indemnify, each Person who acts as Stockholders’ Representative with respect to all actions, decisions, elections or therebyother determinations made by such Persons in the performance of their duties as the Stockholders’ Representative, except for to the extent arising from the gross negligence or willful misconduct of any such actions Person (and any action taken or omitted to be taken resulting upon the advice of counsel shall be conclusive evidence of the absence of gross negligence or willful misconduct). Such indemnity shall be paid first from the Stockholders’ Representative’s willful misconductRepresentative Fund to the extent then available, and thereafter directly from the Indemnifying Parties on a several and not joint basis. The Buyer availability of indemnity for Persons who act as the Stockholders’ Representative shall be entitled subject to deal exclusively the same privileges as contemplated for directors of a Delaware corporation under DGCL Section 145; provided, that solely the Indemnifying Parties (and not the Parent, Company nor any other their affiliates) shall be liable therefor. In addition, each Indemnifying Party agrees that the costs and expenses incurred by the Stockholders’ Representative in the performance of his or her duties hereunder (such costs and expenses, the “Stockholders’ Representative Expenses”) shall be paid for and be the responsibility of the Indemnifying Parties in accordance with their Pro Rata Portions. Within one (1) Business Day after the Closing, Parent shall deliver to the Stockholders’ Representative an amount in cash equal to $250,000 (the “Stockholder Representative Fund Amount”) from the portion of the Merger Consideration and payments under the Management Bonus Plan payable to the Indemnifying Parties at Closing in accordance with their respective Pro Rata Portions, to an account specified by the Stockholders’ Representative on all matters relating or prior to this Agreement, and shall be entitled to rely conclusively Closing Date as the fund for reimbursement of Stockholders’ Representative Expenses (without further evidence the “Stockholders’ Representative Fund”). Any balance of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Representative Fund not used for such Person reimbursement by the Stockholders’ Representative or its successor(s), shall be returned by the Stockholders’ Representative to the Indemnifying Parties in accordance with their Pro Rata Portions, at such time as fully binding the Stockholders’ Representative reasonably determines in his sole discretion that such a balance is no longer needed to carry out the duties of the Stockholders’ Representative hereunder. All Stockholders’ Representative Expenses shall be paid first from the Stockholders’ Representative Fund, to the extent then available, and thereafter directly from the Indemnifying Parties on a several and not joint basis. Without limiting the right of the Stockholders’ Representative to such reimbursement or such indemnity from the Stockholders’ Representative Fund or directly from the Indemnifying Parties, following the date on which the Escrow Fund is finally released to the Indemnifying Parties and the satisfaction or resolution of all claims made by Parent Indemnified Parties for Losses, the Stockholders’ Representative shall have the right, but not the obligation, to recover any Stockholders’ Representative Expenses not covered by the Stockholders’ Representative Fund from the Escrow Fund prior to any distribution to the Indemnifying Parties and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholders’ Representative Expenses actually incurred, but not to the extent covered by the Stockholders’ Representative Fund.
(g) The parties agree that the Stockholders’ Representative shall have reasonable access, during normal business hours and upon each reasonable notice, to information about the Company (as the Surviving Corporation) and Parent and the reasonable assistance of the Company’s (as the Surviving Corporation) and Parent’s officers and employees to the extent required solely for purposes of performing his or her duties and exercising his or her rights under this Agreement upon execution of a non-disclosure agreement under which the Stockholders’ Representative agrees to treat confidentially and not disclose any nonpublic information from or about the Company (as the Surviving Corporation), Parent or their Affiliates to anyone (except on a need to know basis to individuals (identified to the company and Parent in writing in advance) who agree in writing to treat such Personinformation confidentially) or use such information for any other purpose.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Stockholders’ Representative. Each Stockholder (a) The holders of Company Capital Stock, by approving this Agreement and the transactions contemplated hereby, including the Merger, and the Management Contributors, by accepting their respective Change in Control Payments, hereby irrevocably authorizesappoint Laurel Services, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act LLC as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) Representative and authorizes and directs authorize the Stockholders’ Representative to take, and consent to the Stockholders’ Representative taking, the following actions for and on behalf of holders of Company Capital Stock and the Management Contributors following the Closing: (i) to give and receive notices and communications; (ii) to take any and all actions (includingrelating to claims to hold harmless, without limitationindemnify, executing and delivering compensate, reimburse or pay any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such PersonsIndemnitee hereunder; (iiiii) exercise to authorize delivery to Parent of a portion of the Escrow Fund in satisfaction of claims by the Indemnitees; (iv) to object to such deliveries; (v) to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, such claims; (vi) to take all other rights, power and authority, as are authorized, delegated and granted to actions contemplated for the Stockholders’ Representative pursuant to in this Agreement and in the Escrow Agreement; (vii) to execute and (iii) exercise such rights, power and authority as are incidental deliver all documents necessary or desirable to carry out the foregoing. Any such actions taken, exercises intent of rights, power or authority, this Agreement and any decision other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (viii) to make all elections or determination made decisions contemplated by this Agreement and any other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (ix) to amend, modify or waive provisions of this Agreement (subject to Section 9.2 and Section 9.3) or any of the other related agreements to which the Stockholders’ Representative consistent therewithis a party; (x) to engage, shall be absolutely employ or appoint any agents or representatives (including attorneys, accountants and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that consultants) to assist the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection complying with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconductduties and obligations; and (xi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Buyer Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all such matters relating to this Agreement, Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder holder of Company Capital Stock or Management Contributor by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any holder of Company Capital Stock or Management Contributor by the Stockholders’ Representative, as being fully binding upon such Person Person. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from each of the holders of Company Capital Stock and the Management Contributors. Any decision or action by the Stockholders’ Representative as fully hereunder, including any agreement between the Stockholders’ Representative and Parent relating to the defense, payment or settlement of any claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder, shall constitute a decision or action of all holders of Company Capital Stock and all Management Contributors and shall be final, binding and conclusive upon each such Person. No holder of Company Capital Stock or Management Contributor shall have the right to object to, dissent from, protest or otherwise contest the same.
(b) If the Stockholders’ Representative shall for any reason become unable to fulfill its responsibilities as the agent of the holders of Company Capital Stock, then ▇▇▇▇▇▇▇ ▇▇▇▇ shall, within ten (10) days after the date upon which the Stockholders’ Representative becomes unable to fulfill its responsibilities, appoint a successor representative reasonably satisfactory to Parent. Any such successor shall become the “Stockholders’ Representative” for all purposes hereunder.
(c) No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder as Stockholders’ Representative except in each case if and to the extent a court of competent jurisdiction has finally determined that the Stockholders’ Representative has engaged in willful misconduct. The holders of Company Capital Stock shall severally indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred in good faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.
(d) The Stockholders’ Representative is serving in this capacity solely for purposes of administrative convenience. The Stockholders’ Representative, as such, is not personally liable for any of the obligations of the holders of Company Capital Stock or Management Contributors hereunder, and the Indemnitees agree that they will not look to the underlying assets of the Stockholders’ Representative for the satisfaction of any obligations of the holders of Company Capital Stock or the Management Contributors.
Appears in 1 contract
Sources: Merger Agreement (Accelrys, Inc.)
Stockholders’ Representative. Each Stockholder 6.01 The Stockholders, and each of them, hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs appoint the Stockholders’ ' Representative as their agent to (i) take any represent, act for and on behalf of, and bind each of the Stockholders in the performance of all actions (of their obligations arising from or relating to this Escrow Agreement, including, without limitationlimitation (a) the execution and delivery of any document, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be certificate or agreement required or permitted by under this Escrow Agreement to be taken delivered by the Stockholders; (b) the negotiation and settlement of claims of IWI in respect of the Escrowed Property and the making of any objection to such Personsclaims; and (c) the representation of the Stockholders at any arbitration or litigation in respect of the foregoing; (ii) exercise such other rights, power give and authority, as are authorized, delegated receive notices and granted to the Stockholders’ Representative receive service of process under or pursuant to this Escrow Agreement; and (iii) exercise such rightsto represent, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authorityact for, and any decision bind each of the Stockholders in the performance of all of their obligations arising from or determination made by related to this Escrow Agreement. The Stockholders' Representative hereby accepts such appointment.
6.02 In the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees event that the Stockholders’ ' Representative shall not resign or otherwise be liable unable to fulfill its duties hereunder, a successor Stockholders' Representative shall be selected by the Stockholders entitled to a majority of the Escrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for any actions taken reason, any such Stockholders' Representative may be so removed or omitted to be taken under or in connection with this Agreement or replaced by the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be Stockholders entitled to deal exclusively with receive a majority of such Escrowed Property. Any decision, act, consent or instruction of the Stockholders’ ' Representative on all matters relating to this Agreement, shall constitute a decision of the Stockholders and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by conclusive and binding upon the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of IWI and the Escrow Agent may rely upon any such Person by decision, act, consent or instruction of the Stockholders’ ' Representative as fully binding upon each such Personbeing the decision, act, consent or instruction of the Stockholders.
Appears in 1 contract
Sources: Acquisition Agreement (Origin Investment Group Inc)
Stockholders’ Representative. (a) Each Stockholder Company Stockholder, by its approval of, or consent to, the Merger and the adoption of this Agreement, its acceptance of any consideration pursuant to this Agreement or delivery of a Letter of Transmittal, hereby irrevocably authorizes, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) , as of the date of this Agreement, with power of designation and authorizes assignment as its true and directs lawful attorney-in-fact and agent with full power of substitution, to act solely and exclusively on behalf of, and in the name of, such Company Stockholder, regarding any matter relating to or arising under this Agreement, the Escrow Agreement or the Transactions, with the full power, without the consent of such Company Stockholder, to exercise as the Stockholders’ Representative in its sole discretion deems appropriate, the powers that such Company Stockholder could exercise under this Agreement with respect to (i) all of its rights and obligations and to take any and all actions (includingwith respect thereto necessary or appropriate in the judgment of the Stockholders’ Representative in connection with this Agreement, the Escrow Agreement and the Transactions. The appointment of the Stockholders’ Representative is coupled with an interest and shall be irrevocable by any Company Stockholder in any manner or for any reason. Buyer, the Paying Agent and the Escrow Agent shall be entitled to rely exclusively, without limitationindependent verification or investigation, executing upon any notices and delivering other acts of the Stockholders’ Representative relating to the Company Stockholders’ rights and obligations under this Agreement as being legally binding acts of each Company Stockholder individually and collectively, and Buyer, the Paying Agent and the Escrow Agent shall deliver any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be notice required or permitted by under this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted delivered to the Company Stockholders to the Stockholders’ Representative. No Company Stockholder may take any action with respect to its rights and obligations under this Agreement without the express written consent of the Stockholders’ Representative.
(b) The Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial Liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to the foregoingEscrow Agreement or the transactions contemplated hereby or thereby. Any such actions takenFurthermore, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities from the Company Stockholders, which, in the Stockholders’ Representative’s determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and Liabilities that may be incurred by the Stockholders’ Representative in performing such actions. The Stockholders’ Representative shall be entitled to (i) rely upon the Estimated Closing Statement, (ii) rely upon any signature believed by it to be genuine and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Stockholder or other Person.
(c) The Stockholders’ Representative shall not be liable to any Company Stockholder for any act done or omitted under this Agreement or the Escrow Agreement as the representative of the Company Stockholders while acting in good faith, and any act done or omitted shall be conclusive evidence of such good faith. Each Company Stockholder severally (pro rata in proportion to their respective shares of the Merger Consideration) and not jointly shall indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless from and against any Losses (each, a “Representative Loss”) arising out of or in connection with any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with by the Stockholders’ Representative on all matters relating to under this Agreement or under the Escrow Agreement, and shall be entitled to rely conclusively (without further evidence in each case as such Representative Loss is incurred or suffered; provided, that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or bad faith of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken the Stockholders’ Representative will reimburse the Company Stockholders the amount of such indemnified Representative Loss attributable to such gross negligence or purported bad faith. If not paid directly to be taken on behalf of the Stockholders’ Representative by the Company Stockholders, any such Person Representative Losses may be recovered by the Stockholders’ Representative (without the requirement of any consent or approval by Buyer) from the portion of the Adjustment Escrow Amount otherwise distributable to the Company Stockholders pursuant to the terms of this Agreement and the Escrow Agreement at the time of distribution, in each case in accordance with written instructions delivered by the Stockholders’ Representative to the Escrow Agent. While this Section 9.14(c) allows for the Stockholders’ Representative to be paid from distributions to the Company Stockholders from the Adjustment Escrow Amount, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as fully binding upon such Representative Losses are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise; provided, however, that none of Buyer, the Surviving Corporation nor any of their respective Affiliates (except for any such Affiliate that is a Company Stockholder, and then, only in such Affiliate’s capacity as a Company Stockholder) shall have any Liability with respect to such items.
(d) Buyer and the Company acknowledge that the Stockholders’ Representative is party to this Agreement solely for purposes of serving as the representative of the Company Common Stockholders hereunder, and no action, suit, claim, investigation or proceeding will be brought by, or on behalf of Buyer, the Company or the Surviving Corporation against the Stockholders’ Representative with respect to this Agreement or the Transactions, or any statement, certificate, instruction, opinion, instrument or other documents delivered hereunder (with it being understood that any covenant or agreement of or by the “Parties” or “each of the Parties” will not be deemed to require performance by, or be an agreement of, the Stockholders’ Representative unless performance by the Stockholders’ Representative is expressly provided for in such Personcovenant or the Stockholders’ Representative expressly so agrees in writing).
Appears in 1 contract
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (a) ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder ▇, ▇▇. (the “Stockholders’ Representative”) shall act as the representative of holders of Company Capital Stock, Qualified Options and authorizes Qualified Warrants and directs 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 by such Persons, to waive any requirements of this Agreement or to enter into one or more amendments or supplements to this Agreement that Stockholders’ Representative to (i) take any determines in Stockholders’ Representative’s sole and all actions (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement absolute discretion to be taken by such Persons; (ii) exercise such other rightsnecessary, power appropriate or advisable, which authority includes the execution and authoritydelivery of the Escrow Agreement and any amendments or supplements thereto and the performance of all obligations thereunder, as are authorizedincluding authority to collect and pay funds and dispute, delegated settle, compromise and granted to the make all claims. The authority of Stockholders’ Representative pursuant includes the right to this Agreement; hire or retain, at the sole expense of the holders of Company Capital Stock, Qualified Options and (iii) exercise Qualified Warrants, such rightscounsel, power investment bankers, accountants, representatives and authority other professional advisors as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewithdetermines in Stockholders’ Representative sole and absolute discretion to be necessary, shall be absolutely appropriate or advisable in order to perform this Agreement and irrevocably binding on each such Person as if such Person personally had taken such actionthe Escrow Agreement. Notwithstanding the foregoing, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted have the authority to be taken under or in connection with amend, on behalf of Company Capital Stock, Qualified Options and Qualified Warrants, (i) the terms of Article II of this Agreement or (ii) any obligation of Company Capital Stock, Qualified Options and Qualified Warrants under this Agreement in a manner that expands such obligation. Any party will have the transactions contemplated hereby or thereby, except for such actions right to rely upon any action taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the by Stockholders’ Representative on all matters relating to this Agreementin accordance with the powers set forth above, and shall be entitled to rely conclusively act in accordance with such action without independent investigation.
(without further evidence b) Parent will have no liability to any holder of any kind whatsoever) on any document executed by Company Capital Stock, Company Options or purported to be executed on behalf Company Warrants or otherwise, in each case arising out of any Stockholder by the acts or omissions of Stockholders’ Representative, any disputes among holders of Company Capital Stock, Company Options or Company Warrants or with Stockholders’ Representative, or, provided that Parent shall have fulfilled its obligations under Sections 2.2(a) and 2.4, the consents described in Sections 7.2(d), 7.2(f), or 7.2(g) hereof. Parent may rely entirely on any other action taken or purported its dealings with, and notices to be taken on behalf of any such Person by the and from, Stockholders’ Representative as fully binding upon each such Personand the Company (with copies to the Persons set forth in Section 10.4 hereof) to satisfy any obligations it might have under this Agreement, the Escrow Agreement or any other agreement referred to in this Agreement.
Appears in 1 contract
Stockholders’ Representative. Each (a) Pursuant to the terms of this Section 12.15, each Stockholder hereby irrevocably authorizes, directs and appoints Will▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇ act as such Stockholder's agent and representative (the "Stockholders' Representative") for purposes of receiving on his or her behalf all notices under this Agreement, issuing on his or her behalf such notices under this Agreement as the Stockholders' Representative shall determine in his sole discretion to issue, and performing such other administrative and other functions under this Agreement as may become necessary or desirable.
(b) The Stockholders' Representative shall have full power and authority to act as sole for and exclusive representative for such Stockholder (on behalf of the “Stockholders’ Representative”) and authorizes and directs Stockholders in regard to their rights under this Agreement. Without limiting the foregoing, the Stockholders’ ' Representative is authorized to (i) take resolve all claims for indemnification under this Agreement, (ii) retain counsel of his choosing, experts and other professionals as may be necessary or desirable to assist in the resolution of any claim for indemnification under this Agreement, and (iii) execute and deliver the Stockholders and Company Closing Certificate on behalf of the Stockholders. The Stockholders' Representative shall have no right to act as agent for service of process for any one of the Stockholders, except that any notice delivered to the Stockholders' Representative with respect to any claim arising pursuant to Section 11.2 of this Agreement shall be deemed notice to all the Stockholders with respect thereto.
(c) The Stockholders' Representative shall be entitled to reasonable compensation from the Stockholders for his services and reimbursement of all expenses, including the cost of error and omissions insurance incurred in his capacity as the Stockholders' Representative.
(d) At any time after the date hereof, Buyer shall be fully entitled in acting on and relying upon any written notice, direction, request, waiver, consent, receipt or other paper or document that Buyer in good faith believes to have been signed or presented by the Stockholders' Representative and Buyer will have no liability to any Stockholder if it acts in accordance with the foregoing.
(e) The Stockholders' Representative shall be entitled to reimbursement by the Stockholders of all reasonable expenses (including the cost of errors and omissions insurance) incurred in his capacity as Stockholders' Representative. The Stockholders shall indemnify and hold harmless the Stockholders' Representative from any and all actions costs, expenses, or damages (including, without limitation, executing and delivering any documents, incurring any costs and expenses on behalf paid or incurred) in connection with the performance of such Stockholder and making any and all determinations) which may be required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative his obligations pursuant to this Agreement; , other than those arising from the gross negligence or willful misconduct of the Stockholders' Representative. The Stockholders shall be jointly and (iii) exercise such rights, power and authority as are incidental severally liable to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ ' Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with liability arising out of this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonSection 12.15.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) The Stockholders hereby irrevocably authorizes, directs and appoints ▇▇. authorize ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder the Stockholders' Representative (the “"Stockholders’ ' Representative”") and authorizes and directs the Stockholders’ Representative to (i) 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 Management Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 10 hereof, (ii) give and receive all notices required to be given under the Agreement and (iii) take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders and/or the Management Stockholders by the terms of this Agreement; provided, however, that notwithstanding any other provision of this Agreement, the Stockholders' Representative shall have no authority, prior to the Closing, to agree to any change to, or waiver of, any material provision of this Agreement without the prior written approval of the holders of a majority in interest of the outstanding shares of Series A Preferred Stock of the Company or, following the Closing, to agree to any change to, or waiver of, any material provision of this Agreement which would materially and adversely affect the interests of BancBoston Ventures, Inc. or Zero Stage Capital V L.P., or their successors or assigns.
(b) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, Stockholders holding, prior to the Closing, a majority of the Shares shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders' Representative for purposes of this Agreement.
(c) All decisions and actions (by the Stockholders' Representative, including, without limitation, executing any agreement between the Stockholders' Representative and delivering the Buyer relating to the defense or settlement of any documents, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) claims for which the Management Stockholders may be required to indemnify the Buyer and/or the Company pursuant to Section 10 hereof, shall be binding upon all of the Stockholders.
(d) By their execution of this Agreement, the Stockholders agree 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 pursuant to Section 10 hereof or permitted by this Agreement any other actions required to be taken by such Persons; the Stockholders' Representative hereunder, and no party hereunder 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;
(ii) exercise such other rightsall actions, power decisions and authority, as are authorized, delegated and granted to instructions of the Stockholders’ ' Representative pursuant to this Agreement; shall be conclusive and binding upon all of the Stockholders;
(iii) exercise such rightsthe provisions of this Subsection 1.04 are independent and severable, power are irrevocable and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, coupled with an interest and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power enforceable notwithstanding any rights or authority or made such decision or determination in such Person’s capacity. Each remedies that any Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or may have in connection with this Agreement or the transactions contemplated hereby or therebyby this Agreement;
(iv) remedies available at law for any breach of the provisions of this Subsection 1.04 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The the Buyer shall be entitled to deal exclusively with temporary and permanent injunctive relief without the Stockholders’ Representative on all matters relating necessity of proving damages if the Buyer brings an action to enforce the provisions of this AgreementSubsection 1.04; and
(v) the provisions of this Subsection 1.04 shall be binding upon the executors, heirs, legal representatives and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall be entitled mean and include the successors to rely conclusively the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(without further evidence of any kind whatsoevere) on any document executed by or purported to be executed on behalf of any Stockholder Any fees and expenses incurred by the Stockholders’ Representative' Representative shall be paid by the Management Stockholders in proportion to their ownership of Shares as set forth on Schedule I attached hereto; provided, however, that the -------- - -------- ------- Stockholders shall reimburse the Stockholders' Representative for any fees and expenses incurred in connection with the services rendered by such person which financially benefit all Stockholders, and on each Stockholder shall severally but not jointly contribute to reimbursement of such expenses as their interests appear in the Company prior to the Closing. The Stockholders' Representative shall give each Stockholder at least fifteen (15) days' prior notice prior to taking any other action taken or purported after the Closing for which he intends to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personseek reimbursement hereunder.
Appears in 1 contract
Stockholders’ Representative. Each Stockholder (a) By voting in favor of or consenting to the Merger or by surrendering or delivering to Beyond6, the Paying Agent, the Parent or the Surviving Corporation (or its designee payroll service provider), as applicable, an executed Letter of Transmittal to the Paying Agent, in exchange for the Merger Consideration to be paid in accordance with this Agreement, each Company Holder irrevocably approves the appointment of, and hereby irrevocably authorizes, directs constitutes and appoints ▇▇the Stockholder Representative as the sole, exclusive, true and lawful agent, representative and attorney-in-fact of all Company Holders and each of them with respect to any and all matters relating to, arising out of, or in connection with, this Agreement, or any other Transaction Document, including for purposes of taking any action or omitting to take any action on behalf of each Company Holder hereunder to:
(i) execute and deliver all amendments, waivers, 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 or any other Transaction Document, or in connection with any of the matters set forth in clauses (ii) through (vii) of this Section 3.6(a);
(ii) do or refrain from doing any further act or deed on behalf of the Company Holders that the Stockholders’ Representative deems necessary or appropriate in its discretion relating to act the subject matter of this Agreement as sole fully and exclusive completely as the Company Holders could do if personally present;
(iii) administer the defense or settlement of any disputes regarding the Post-Closing Statement pursuant to Section 3.3 and agreeing to or negotiating the Final Adjustment Amount, Surplus or Deficit;
(iv) give any written direction to the Paying Agent;
(v) give or receive notices to be given or received by the Company Holders under this Agreement, or any other Transaction Document (except to the extent that this Agreement, or any other Transaction Document expressly contemplates that any such notice shall be given or received by each Company Holder individually); as the representative for of the Company Holders, to enforce and protect the rights and interests of the Company Holders and to enforce and protect the rights and interests of the Stockholders’ Representative arising out of or under or in any manner relating to this Agreement and each other Transaction Document and, in connection therewith, to (i) employ such Stockholder (agents, consultants and professionals, to delegate authority to its agents, to take such actions and to execute such documents on behalf of the “Company Holders as the Stockholders’ Representative, in its reasonable discretion, deems to be in the best interest of the Company Holders; (ii) assert or institute any claim, action, proceeding or investigation; (iii) investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by Parent, or any other Person, against the Stockholders’ Representative and following the Closing receive process on behalf of any or all Company Holders in any such claim, action, proceeding or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, give receipts, releases and discharges on behalf of all of Company Holders with respect to any such claim, action, proceeding or investigation; (iv) file any proofs, debts, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (v) settle or compromise any claims asserted; (vi) assume, on behalf of all of Company Holders, the defense of any claim; and (vii) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing claims, actions, proceedings or investigations, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have liability for any failure to take such any action; and
(vi) take any other action that, pursuant to the express terms hereof, is to be (or which may be taken by) the Stockholders’ Representative. All actions, notices, communications and determinations by or on behalf of the Company Holders shall be given or made by the Stockholders’ Representative and all such actions, notices, communications and determinations by the Stockholders’ Representative shall conclusively be deemed to have been authorized by, and shall be binding upon, any of and all Company Holders, and no Company Holder shall have the right to object, dissent, protest or otherwise contest the same. Without limiting the rights and obligations of Beyond6, Parent and Sub under this Agreement, the Stockholders’ Representative shall be entitled to: (i) rely upon the Preliminary Settlement Statement and 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 the applicable Company Holder.
(b) The Stockholders’ Representative may resign at any time. If the Stockholders’ Representative resigns, dies or becomes legally incapacitated, then a majority of the Company Holders, based on their respective Pro Rata Percentages, shall promptly designate in writing to Parent a single Person to fill the Stockholders’ Representative vacancy as the successor Stockholders’ Representative hereunder. If at any time there shall not be a Stockholders’ Representative or the Company Holders fail to designate a successor Stockholders’ Representative, then Parent may have a court of competent jurisdiction appoint a Stockholders’ Representative hereunder. A majority of the Company Holders, based on their respective Pro Rata Percentages, may also replace the Person serving as the Stockholders’ Representative from time to time and for any reason upon at least ten (10) days’ prior written notice to Parent.
(c) The Stockholders’ Representative shall act for the Company Holders 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 Company Holders. The Stockholders’ Representative is authorized to act on behalf of the Company Holders notwithstanding any dispute or disagreement among the Company Holders. In taking any actions as Stockholders’ Representative, the Stockholders’ Representative may rely conclusively, without any further inquiry or investigation, upon any certification or confirmation, oral or written, given by any Person the Stockholders’ Representative reasonably believes to be authorized thereunto. The Stockholders’ Representative undertakes to perform such duties and only such duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Stockholders’ Representative. 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 and any agreements ancillary hereto, except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Holders will indemnify, defend and hold harmless the Stockholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and authorizes performance of this Agreement and directs any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company 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 Company Holders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Representative Holdback and (ii) the Escrow Funds at such time as remaining amounts would otherwise be distributable to the Company Holders (but only to the extent of the funds then available for distribution to the Company Holder); provided that while this section allows the Stockholders’ Representative to be paid from the Representative Holdback and the Escrow Funds, as applicable, this does not relieve the Company 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. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Company Holders or otherwise. The foregoing indemnification shall not be deemed exclusive of any other right to which the Stockholders’ Representative may be entitled apart from the provisions hereof. In the event of any indemnification under this Section 3.6(c), each Company Holder shall promptly deliver to the Stockholders’ Representative full payment of his, her or its ratable share of such indemnification claim. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Holders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. Except for this Agreement, the Stockholders’ Representative has not entered into any Contract, arrangement or understanding with the Company or any Company Holder, and the Company Holders do not have any requirements, prerequisites or veto rights in connection with the Stockholders’ Representative’s fulfillment of its obligations or exercise of its rights under this Agreement.
(d) The Stockholders’ Representative shall treat confidentially any nonpublic information disclosed to it pursuant to this Agreement and shall not use such nonpublic information other than in the performance of its duties as the Stockholders’ Representative. In addition, the Stockholders’ Representative shall not disclose any nonpublic information disclosed to it pursuant to this Agreement to anyone except as required by Law; provided that (i) take the Stockholders’ Representative may disclose such nonpublic information to legal counsel and other advisors under an obligation of confidentiality and non-use in its capacity as such (for the purpose of advising the Company Holders on any information disclosed to such Stockholders’ Representative pursuant to this Agreement), (ii) the Stockholders’ Representative (or legal counsel or other advisor to whom information is disclosed pursuant to clause (i) above) may disclose such nonpublic information disclosed to the Stockholders’ Representative pursuant to this Agreement in any action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) and (iii) the Stockholders’ Representative may disclose to employees, advisors, agents or consultants of the Stockholders’ Representative and to any Company Holder (in each case who have a need to know such information and who are subject to confidentiality obligations with respect thereto) any such nonpublic information disclosed to the Stockholders’ Representative.
(e) Parent, the Company, the Surviving Corporation and their respective Subsidiaries and Affiliates shall be entitled to rely exclusively on the authority of the Stockholders’ Representative as the agent, representative and attorney-in-fact of the Company Holders for all actions (includingpurposes under this Agreement, without limitationincluding the communications of the Stockholders’ Representative relating to the foregoing as the communications of the Company Holders, executing and delivering shall have no Liability for any documents, incurring such reliance or be held liable or accountable in any costs and expenses manner for any act or omission of the Stockholders’ Representative in such capacity. Neither Parent nor the Company are required to make any inquiry or investigation regarding the authority of the Stockholders’ Representative to act on behalf of such Stockholder all Company Holders hereunder. No Company Holder may revoke the authority of the Stockholders’ Representative. Each Company Holder, by voting in favor of or consenting to the Merger or by surrendering or delivering a Certificate or an affidavit in lieu thereof to Beyond6, the Paying Agent, the Parent, or the Surviving Corporation (or its designee payroll service provider), as applicable, along with an executed Letter of Transmittal, hereby ratifies and making confirms, and hereby agrees to ratify and confirm, any and all determinations) which may be required or permitted by this Agreement to be action taken by such Persons; (ii) the Stockholders’ Representative in the exercise such other rights, power and authority, as are authorized, delegated and of the power-of-attorney granted to the Stockholders’ Representative pursuant to this Agreement; Section 3.6, which power-of-attorney, being coupled with an interest, is irrevocable and shall survive the death, incapacity or incompetence of such Company Holder.
(iiif) exercise such rightsThe Representative Holdback will be used for the purposes of paying directly, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by reimbursing the Stockholders’ Representative consistent therewithfor, any third party expenses pursuant to this Agreement and the Escrow Agreement. The Company Holders will not receive any interest or earnings on the Representative Holdback and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Representative Holdback other than as a result of its gross negligence or willful misconduct. Contemporaneous with or as soon as practicable following the release in full of the Escrow Funds, the Stockholders’ Representative shall disburse the balance of the Representative Holdback then remaining to the Company Holders pro rata in accordance with their respective Pro Rata Percentages as a portion of the Merger Consideration payable to the Company Holders. For U.S. federal and applicable state and local income tax purposes, the Representative Holdback shall be absolutely treated as having been received and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacityvoluntarily set aside by the Company Holders at the time of Closing. Each Stockholder agrees The Parties agree that the Stockholders’ Representative shall is not be liable for acting as a withholding agent or in any actions taken or omitted to be taken under or similar capacity in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such PersonHoldback.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints by signing this Agreement, designates Wayn▇ ▇▇. ▇▇▇▇▇ (▇▇, in the event that Wayn▇ ▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve or resigns, Stua▇▇ ▇▇▇▇▇) ▇▇ to act as sole and exclusive be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any and all determinations) which may be required or permitted act of any Stockholder, by this Agreement to be taken operation of law, whether by such Persons; Stockholder's death or any other event.
(iid) exercise such other rights, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to Notwithstanding the foregoing. Any such actions taken, the Stockholder Representative shall inform the other Stockholder of all notices received, and of all actions, decisions, notices and exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given or taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for by such actions taken or omitted to be taken resulting from Stockholders’ Stockholder Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer certain matters contemplated hereby irrevocably authorizesfollowing the Closing, directs and appoints ▇▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole and exclusive representative for such Stockholder (the “Stockholders’ Representative”) and authorizes and directs including any actions that the Stockholders’ Representative may, in its sole discretion, determine to (i) take any be necessary, desirable or appropriate in connection with the matters set forth in this Agreement, the Stockholders hereby designate Shareholder Representative Services LLC as the representative of the Stockholders. By voting in favor of the adoption of this Agreement, the approval of the principal terms of the Merger, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the Closing Merger Consideration, the Stockholders hereby agree that the Stockholders’ Representative is hereby appointed and constituted the true and lawful attorney-in-fact of each Stockholder, with full power in the name of such Stockholder to act according to the terms of this Agreement and the Escrow Agreement and in general to do all actions (things and to perform all acts including, without limitation, executing and delivering any documentsagreements, incurring any costs and expenses on behalf of such Stockholder and making any and all determinations) which may be required amendments or permitted instruments contemplated by or deemed advisable in connection with this Agreement or the Escrow Agreement, except with respect to be taken rights specifically held by such Persons; (ii) exercise such other rightsthe Founders under the terms of this Agreement. Without limiting the generality of the foregoing, power and authority, as are authorized, delegated and granted to the Stockholders’ Representative pursuant shall have full authority to (i) execute, deliver, acknowledge and amend on behalf of the Stockholders any and all documents that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, (ii) take or refrain from taking any actions to resolve or settle all matters and disputes arising out of or related to this Agreement; Agreement and the transactions contemplated hereby and (iii) exercise such rightsengage attorneys, power accountants and authority as are incidental to other advisors necessary or appropriate in the sole judgment of the Stockholders’ Representative (and at the expense of the Stockholders) for the accomplishment of the foregoing. Any such actions taken, exercises of rights, power or authorityBuyer 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 determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally notice, instruction, request or decision had taken such action, exercised such rights, power or authority been given or made by all Stockholders, and no party shall have any cause of action against Buyer for any action or inaction in reliance upon any such notice, instruction, request or decision. All actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon each of the Stockholders. No Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or determination instruction given by the Stockholders’ Representative under this Agreement. Without limiting the foregoing, the Stockholders’ Representative shall not have by reason of this Agreement a fiduciary relationship in such Person’s capacityrespect of any Stockholder. Each Stockholder agrees that the The Stockholders’ Representative shall not be liable to any Stockholder for any actions action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except for actions constituting fraud or bad faith. The Stockholders’ Representative shall not be liable to the Stockholders for any apportionment or distribution of payments made by the Stockholders’ Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Stockholder to whom payment was due, but not made, shall be taken under to recover from other Stockholders any payment in excess of the amount to which they are determined to have been entitled. The Stockholders’ Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Stockholders’ Representative nor any agent or advisor employed by it shall incur any liability to any Stockholder relating to the performance of its duties hereunder, except for actions or omissions constituting fraud or bad faith. The Stockholders do hereby agree to indemnify, defend and hold the Stockholders’ Representative harmless from and against, and to reimburse the Stockholders’ Representative for, any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s execution and performance of this Agreement, the Escrow Agreement and the other Transaction Documents, including any future actions taken hereunder or thereunder in discharging its duties, or otherwise suffered or incurred as a result of the performance of such Stockholders’ Representative’s duties under this Agreement, the Escrow Agreement or the other Transaction Documents in each case as such Representative Loss is suffered or incurred. If not paid directly to the Stockholders’ Representative by the Stockholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Stockholders’ Representative Expense Holdback Amount, and (ii) the amounts in the Net Asset Escrow Deposit and the Indemnification Escrow Deposit at such time as remaining amounts would otherwise be distributable to the Stockholders; provided, that while this section allows the Stockholders’ Representative to 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. The Stockholders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Stockholders’ Representative or the termination of this Agreement. The Stockholders will not receive any interest or earnings on the Stockholders’ Representative Expense Holdback Amount and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Stockholders’ Representative Expense Holdback Amount other than as a result of its gross negligence or willful misconduct. The Buyer Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Stockholders’ Representative shall be entitled to deal exclusively with use the Stockholders’ Representative on all matters relating Expense Holdback Amount for purposes of paying or reimbursing its out-of-pocket costs and expenses in discharging its duties hereunder or otherwise administering interests or former interests of the Stockholders in this Agreement and the Transactions and the Company (including amounts to this Agreement, which the Stockholders’ Representative is entitled to indemnification hereunder). The Stockholders’ Representative may additionally obtain amounts to be used pursuant to the foregoing sentence by requesting that the Escrow Agent release amounts constituting the Indemnification Escrow Deposit or the Net Asset Escrow Deposit only at such time as the remaining amount of either such escrow deposit would otherwise be distributable to the Stockholders. Any remaining amount of the Stockholders’ Representative Expense Holdback Amount (including any such funds obtained from the Indemnification Escrow Deposit and the Net Asset Escrow Deposit) shall be entitled distributed to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder the Stockholders at such time as is determined by the Stockholders’ Representative, in a manner proportionate with their respective Pro Rata Share. For tax purposes, the Stockholders’ Representative Expense Holdback Amount will be treated as having been received and on voluntarily set aside by the Stockholders at the time of Closing. This Section 1.19 does not prevent the Stockholders’ Representative from seeking any other action taken remedies available to it at law or purported otherwise. The Stockholders acknowledge and agree that all communications after the Closing with the Company, Buyer or any of their respective officers, directors, employees or agents with respect to matters arising under this Agreement, shall be taken on behalf of any such Person made exclusively by the Stockholders’ Representative, except with respect to rights specifically held by the Founders under the terms of this Agreement. To ensure the protection of all confidential and proprietary information of the Company and Buyer, the Stockholders’ Representative shall not disclose any confidential information to the Stockholders with respect to the Business, the Company, Buyer or this Agreement after Closing without the prior written consent of Buyer; provided that, notwithstanding the foregoing, the Stockholders’ Representative shall be permitted to disclose information to the Advisory Group in connection with its services as fully binding upon each the Stockholders’ Representative and to the Stockholders in connection with the defense of any Indemnification Claim. The Stockholders’ Representative hereby accepts such Personappointment. The Stockholders’ Representative may resign at any time.
(b) Certain Stockholders (the “Advisory Group”) have concurrently herewith entered into a letter agreement with the Stockholders’ Representative regarding direction to be provided by the Advisory Group to the Stockholders’ Representative. The Advisory Group shall incur no liability to the Stockholders for any liability incurred by the members of the Advisory Group while acting in good faith and arising out of or in connection with the acceptance or administration of their duties (it being understood that any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith), even if such act or omission constitutes negligence on the part of the Advisory Group or one of its members. This indemnification and exculpation shall survive the termination of this Agreement.
Appears in 1 contract
Stockholders’ Representative. Each (a) By the execution and delivery of this Agreement, each Stockholder hereby irrevocably authorizes, directs constitutes and appoints ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ to act as sole his, her or its true and exclusive representative for such Stockholder lawful agent and attorney-in-fact (together, the “Stockholders’ Representative”) ), with full power of substitution to act in such Stockholder’s name, place and authorizes stead with respect to all transactions contemplated by and directs all terms and provisions of this Agreement and the Escrow Agreement (as defined in Section 1.10), and to act on such Stockholder’s behalf in any dispute, litigation or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative to (i) take any shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and all actions (the Escrow Agreement, including, without limitation, executing the power:
(i) to waive any condition to the obligations of such Stockholder to consummate the transactions contemplated by this Agreement;
(ii) to make any and delivering all decisions entitled to be made thereby under the Escrow Agreement, including without limitation, any and all decisions about distribution of any amounts out of the Escrow Fund;
(iii) to execute and deliver all ancillary agreements, certificates and documents, incurring any costs and expenses to make representations and warranties therein, on behalf of such Stockholder and making any and all determinations) which may be required the Stockholders’ Representative deems necessary or permitted appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement; and
(iv) to do or refrain from doing any further act or deed on behalf of such Stockholder which the Stockholders’ Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement and the Escrow Agreement, as fully and completely as such Stockholder could do if personally present.
(b) The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Harbor, its affiliates and any other Person (as defined in Section 9.12) may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative on behalf of the Stockholders in all matters referred to herein. All notices delivered by Harbor or the Company (following the Closing) to the Stockholders’ Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders shall constitute notice to 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 believes to be taken in the best interests of the Stockholders and consistent with his obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages they may suffer by such Persons; reason of the performance by the Stockholders’ Representative of his duties under this Agreement, other than loss or damage arising from willful violation of the law.
(iic) exercise such other rightsEach Stockholder agrees to indemnify and hold harmless the Stockholders’ Representative from any loss, power damage or expense arising from the performance of its duties as the Stockholders’ Representative hereunder, including, without limitation, the cost of legal counsel retained by the Stockholders’ Representative on behalf of the Stockholders, but excluding any loss or damage arising from willful violation of the law.
(d) All actions, decisions and authorityinstructions of the Stockholders’ Representative taken, as are authorized, delegated and made or given pursuant to the authority granted to the Stockholders’ Representative pursuant to this Agreement; Section 1.9 shall be conclusive and (iii) exercise such rights, power and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authoritybinding upon each Stockholder, and any decision no Stockholder shall have the right to object, dissent, protest or determination made otherwise contest the same. In all questions arising under this Agreement or the Escrow Agreement, the Stockholders’ Representative may rely on the advice of counsel, and the Stockholders’ Representative will not be liable to anyone for anything done, omitted or suffered in good faith by the Stockholders’ Representative consistent therewithbased on such advice.
(e) The provisions of this Section 1.9 are independent and severable, shall be absolutely constitute an irrevocable power of attorney, coupled with an interest and irrevocably binding on each such Person as if such Person personally had taken such actionsurviving death or dissolutions, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that granted by the Stockholders to the Stockholders’ Representative shall not be liable for any actions taken or omitted to be taken under or in connection with this Agreement or the transactions contemplated hereby or thereby, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer and shall be entitled to deal exclusively with binding upon the Stockholders’ Representative on all matters relating to this Agreementexecutors, heirs, legal representatives, successors and assigns of each Stockholder.
(f) Harbor shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported written communication delivered to be executed on behalf of any Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by Harbor from the Stockholders’ Representative as fully binding which it reasonably believes to be genuine. The Stockholders shall indemnify and hold Harbor harmless from any act or failure to act based upon each such Personreliance.
Appears in 1 contract
Sources: Stock Purchase Agreement (Harbor Acquisition Corp.)
Stockholders’ Representative. Each Stockholder (a) In order to efficiently administer the transactions contemplated hereby, the Stockholders hereby irrevocably authorizesdesire to designate Jon M. Tamiyasu, directs and appoints as their representative (in such capacity, the "Stockho▇▇▇▇▇' ▇▇▇▇▇▇▇▇tative"). By execution of this Agreement, Jon M. Tamiyasu agrees to act as the Stockholders' Representative.
(▇) ▇▇ ▇▇▇ ▇▇▇nt that Jon M. Tamiyasu, or his substitute as the Stockholders' Representative, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇nable to act as sole perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Buyer, such substituted representative shall be deemed to be a Stockholders' Representative for all purposes of this Agreement and exclusive representative for such the documents delivered pursuant hereto.
(c) By virtue of the execution of this Agreement each Stockholder (the “Stockholders’ Representative”) and authorizes and directs the Stockholders’ Representative to hereby agrees that:
(i) Jon M. Tamiyasu is hereby designated as the Stockholders' Represent▇▇▇▇▇, ▇▇▇ ▇▇▇ substitute Stockholders' Representative shall be elected as set forth in Section 1.5(b);
(ii) the Stockholders hereby authorize the Stockholders' Representative, (A) to take all action necessary against Buyer in connection with breaches of obligations by Buyer under this Agreement, the Notes or any of the Related Documents, (B) to determine the Stockholders to whom consideration from Buyer shall be distributed and the amount of consideration to be so distributed, (C) to give and receive all notices required to be given under this Agreement, the Notes or any of the Related Documents after the Closing Date, (D) to take any and all actions additional action as is contemplated to be taken by or on behalf of the Stockholders after the Closing Date by the terms of this Agreement, including but not limited to any action under Article IX hereof, the Notes or any of the Related Documents, and (E) to take any further action which the Stockholders' Representative shall consider necessary or desirable in connection with this Agreement, the Notes, any of the Related Documents and the transactions contemplated hereby and thereby, including, without limitation, executing the execution, delivery and delivering any documentsperformance of the Escrow Agreement, incurring any costs hereby giving the Stockholders' Representative full power and expenses on behalf of authority to do and perform each and every act and thing whatsoever requisite and necessary to be done in and about the foregoing as fully as such Stockholder might or could do if personally present, and making has ratified and confirmed all that the Stockholders' Representative shall lawfully do or cause to be done by virtue thereof;
(iii) all decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any and all determinations) which may be actions required or permitted by this Agreement to be taken by such Persons; (ii) exercise such other rightsthe Stockholders' Representative hereunder, power and authority, as are authorized, delegated and granted no party shall have any cause of action against Buyer to the Stockholders’ Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental to extent Buyer has relied upon the foregoing. Any such actions taken, exercises instructions or decisions of rights, power or authority, and any decision or determination made by the Stockholders’ ' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative consistent therewith, shall be absolutely conclusive and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that upon all of the Stockholders’ Representative ;
(vi) the provisions of this Section 1.5 are independent and severable, are irrevocable and coupled with an interest and shall not be liable for enforceable notwithstanding any actions taken rights or omitted to be taken under or remedies that any Stockholder may have in connection with this Agreement or the transactions contemplated hereby or therebyby this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 1.5 are inadequate; therefore, except for such actions taken or omitted to be taken resulting from Stockholders’ Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with temporary and permanent injunctive relief without the Stockholders’ Representative on all matters relating necessity of proving damages if Buyer brings an action to enforce the provisions of this AgreementSection 1.5; and
(viii) the provisions of this Section 1.5 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 or the Stockholders shall be entitled mean and include the successors to rely conclusively the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(without further evidence of any kind whatsoeverd) on any document executed by or purported to be executed on behalf of any Stockholder All reasonable, documented fees and expenses incurred by the Stockholders’ Representative, ' Representative from and on any other action taken or purported to after the Closing Date shall be taken on behalf of any such Person paid by the Stockholders’ Representative as fully binding upon each such Person.Stockholders in accordance with their pro rata share set forth on Schedule A.
Appears in 1 contract
Sources: Stock Purchase Agreement (Curative Health Services Inc)
Stockholders’ Representative. Each Stockholder hereby irrevocably authorizes, directs and appoints (i) ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, the Stockholder Representative, is hereby appointed as representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of each Stockholder to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the terms of this Agreement, and to act on behalf of each Stockholder in any amendment of or litigation or arbitration involving this Agreement or any Ancillary Agreements and to do or refrain from doing all such further acts and things, and to execute all such documents, as sole and exclusive representative for such Stockholder (Representative shall deem necessary or appropriate in conjunction with any of the “Stockholders’ Representative”) and authorizes and directs transactions contemplated by this Agreement, including the Stockholders’ Representative to 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 (including, without limitation, executing and delivering or refrain from doing any documents, incurring any costs and expenses further act or deed on behalf of such the Stockholders which the Stockholder and making any and all determinations) which may be required Representative deems necessary or permitted by appropriate in his sole discretion relating to the subject matter of this Agreement to be taken by such Persons; as fully and completely as a Company Stockholder could do if personally present.
(iij) exercise such other rights, power and authority, as are authorized, delegated and Notwithstanding the enumerated powers granted to the Stockholders’ Stockholder Representative in Section 9.1(a) above, the Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders to consummate the transactions set forth in Section 5.3(f);
(k) If the Stockholder Representative becomes unable to serve as Stockholder Representative, such other Person or Persons as may be designated by him who shall be one of the Stockholders holding the majority of the Purchaser Common Stock, shall succeed as the Stockholder Representative.
(l) The Stockholder Representative shall not be held liable by any of the Stockholders for actions or omissions in exercising or failing to exercise all or any of the power and authority of the Stockholder Representative pursuant to this Agreement; and (iii) exercise such rights, power and authority as are incidental except in the case of the Stockholder Representative’s gross negligence, bad faith or willful misconduct. The Stockholder Representative shall be entitled to rely on the foregoing. Any such actions takenadvice of counsel, exercises of rights, power public accountants or authorityother independent experts that it reasonably determines to be experienced in the matter at issue, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall will not be liable to any Stockholder for any actions action taken or omitted to be taken under or in connection good faith based on such advice. The Stockholders will, severally and not jointly, indemnify (in accordance with this Agreement or their pro rata percentages) the transactions contemplated hereby or therebyStockholder Representative from any losses arising out of its serving as the Stockholder Representative hereunder, except for such actions taken losses arising out of or omitted to be taken resulting from Stockholders’ caused by the Stockholder Representative’s gross negligence, bad faith or willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Stockholder Representative on all matters relating to this Agreementis serving in his capacity as such solely for purposes of administrative convenience, and shall be entitled 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 rely conclusively (without further evidence the personal assets of the Stockholder Representative, acting in such capacity, for the satisfaction of any kind whatsoever) on any document executed by or purported obligations to be executed on behalf of any Stockholder performed by the Stockholders’ Stockholders hereunder except to the extent of the Stockholder Representative’s gross negligence, and on any other action taken bad faith or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Personwillful misconduct.
Appears in 1 contract
Stockholders’ Representative. (a) Each Stockholder hereby irrevocably authorizesStockholder, directs and appoints ▇by signing this Agreement, designates Fred ▇. ▇▇▇▇ ▇▇▇▇▇ (▇▇, in the event that Fred ▇. ▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to act as sole and exclusive serve, or resigns, Jame▇ ▇. ▇▇▇▇▇) ▇▇ be such Stockholders' representative for such Stockholder purposes of this Agreement (the “"Stockholders’ ' Representative”) and authorizes and directs the Stockholders’ Representative to (i) take "). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 do all things and to perform all acts including, without limitation, executing and delivering any documentsall agreements, incurring any costs certificates, receipts, instructions and expenses on behalf other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and making the other Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any and all determinations) which may be required or permitted act of any Stockholder, by this Agreement to be taken operation of law, whether by such Persons; Stockholder's death or any other event.
(iid) exercise such other rightsNotwithstanding the foregoing, power and authority, as are authorized, delegated and granted to the Stockholders’ ' Representative pursuant to this Agreement; shall inform each Stockholder of all notices received, and (iii) exercise such rightsof all actions, power decisions, notices and authority as are incidental to the foregoing. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Stockholders’ Representative consistent therewith, shall be absolutely and irrevocably binding on each such Person as if such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s capacity. Each Stockholder agrees that the Stockholders’ Representative shall not be liable for any actions taken or omitted proposed to be done, given, or taken under by such Stockholders' Representative or in connection with this Agreement or the transactions contemplated hereby or thereby, except for taken by such actions taken or omitted to be taken resulting from Stockholders’ ' Representative’s willful misconduct. The Buyer shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed by or purported to be executed on behalf of any Stockholder act as directed by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any such Person by the Stockholders’ Representative as fully binding upon each such Person.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)