Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: 2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation; 2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; 2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement; 2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and 2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Caci International Inc /De/)
Stockholders’ Representative. The Stockholders (a) As of the date of this Agreement, each Stockholder hereby appoint ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact irrevocably appoints Insight Venture Partners, LLC (the “Stockholders’ Representative”) of the Stockholders ), to be its, his or her true and lawful attorney-in-fact and agent, each with full power of substitution or resubstitution, to act in the name, place solely and stead exclusively on behalf of the Stockholders such Stockholder with respect to the surrender of the stock certificates owned transactions contemplated by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, including the Merger, and to act on behalf of the Stockholders such Stockholder in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, to do or refrain from doing all such further acts and things, and to execute all such documents (including the Escrow Agreement) as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreementhereby, including, without limitation, including the power:
2.4.1 (i) to act for the Stockholders such Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and such Stockholder;
(ii) to transact act for such Stockholder with regard to matters of pertaining to litigation;
2.4.2 (iii) to execute and deliver all ancillary agreements, certificates and documents in connection with the transactions contemplated hereby or amendments thereto that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreementappropriate;
2.4.3 to act as the paying agent and (iv) to receive funds funds, make payments of funds, and give receipts for funds, including in respect funds on behalf of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent AgreementStockholder;
2.4.4 (v) to receive funds for the payment of expenses of such Stockholder and apply such funds in payment for such expenses;
(vi) to do or refrain from doing any further act or deed on behalf of the Stockholders such Stockholder that the Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such Stockholder could do if personally present; and
2.4.5 (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 ParentBuyer, Federal Merger Subs and ATS any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any Any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall must be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not in writing and must be signed by the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other eventRepresentative. All notices required to be made or delivered by Parent, Federal Buyer or ATS Merger Subs to the Company (prior to the Effective Time) or the Stockholders described above shall be made to the Stockholders’ Representative for the benefit of the Stockholders such Stockholder and shall discharge in full all notice requirements of ParentBuyer, Federal any Buyer Indemnitee or the Surviving Corporation Merger Subs, as applicable, to the Stockholders such Stockholder with respect thereto. The By their appointment of the Stockholders’ Representative, the Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her his appointment as the Stockholders’ Representative representatives of the StockholdersStockholders hereunder. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative reasonably believes to be in the best interest of the Stockholders and consistent with the obligations of the Stockholders under this Agreement, but none of the Stockholders’ Representative Representative, Buyer, Merger Subs, the Surviving Corporation or the Buyer Indemnified Parties shall not be responsible to the Stockholders any Stockholder for any loss or damages which the Stockholders may suffer by the performance by of the Stockholders’ Representative of her Representative’s duties under this Agreement, other than loss or damage except that the Stockholders’ Representative shall be solely responsible for all damages arising from willful violation of applicable Law by it or gross negligence in the law by the Stockholders’ Representative performance of her his duties under this Agreement. The Stockholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement and her heirs the Escrow Agreement, and personal no implied covenants, functions, responsibilities, duties or legal representatives liabilities shall be held harmless read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders hereby agree (a) to reimburse the Stockholders’ Representative for all out-of-pocket costs and expenses incurred by the Stockholders fromStockholders’ Representative under this Agreement and the Escrow Agreement, including fees for any attorneys or other representative he may employ, and indemnified (b) to severally (without, for the avoidance of doubt, any right of contribution from any of the Surviving Corporation or the Buyer Indemnitees) indemnify and hold harmless and defend the Stockholders’ Representative, his agents and assigns against all liabilities, claims, actions, damages, losses and expenses (including legal and other professional fees and expenses, and litigation costs) of any loss kind (whether known or damages unknown, fixed or contingent) arising out of or in connection with (x) the performance of her obligations Stockholders’ Representative’s omissions to act, or actions taken, resulting from, arising out of, or incurred in accordance connection with, or otherwise with respect to this Agreement and the provisions of this Escrow Agreement, except for any or (y) actions taken with respect to this Agreement and the Escrow Agreement or reasonably believed to be in the scope of the foregoing arising out of 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 willful violation of the law Company, any Stockholder, Buyer, Merger Subs, 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 her duties hereunder. The foregoing indemnity counsel selected by it.
(d) In the event that the Stockholders’ Representative dies, becomes legally incapacitated or resigns (by providing Buyer and the Escrow Agent a minimum of 60 day advance written notice) from its position as Stockholders’ Representative, a successor Stockholders’ Representative (who shall survive either be a Stockholder or another Person reasonably acceptable to Buyer) shall be appointed in writing by a majority in interest of the resignation Stockholders, such appointment to become effective upon the delivery of executed counterparts of such writing to Buyer and the Escrow Agent, together with an acknowledgement signed by the successor Stockholders’ Representative named in such writing that he, she or substitution it accepts the responsibility of successor Stockholders’ Representative and agrees to perform and be bound by all provisions of this Agreement and the Escrow Agreement applicable to the Stockholders’ Representative. Notwithstanding anything to the contrary hereinFailing such appointment, the Escrow Agent or any Stockholder may apply to a court of competent jurisdiction for the appointment of a successor Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Representative.
Appears in 1 contract
Stockholders’ Representative. The (a) By virtue of the execution and delivery of this Agreement, Holdco and the Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as their Stockholders Representative. For purposes of this Agreement, the term “Stockholders Representative” shall mean the representative, true and lawful agent agent, proxy and attorney-in-fact (the “Stockholders’ Representative”) of Holdco and the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions for all purposes of this Agreement, with full power and to act authority on Holdco’s and such Stockholder’s behalf to: (i) 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 funds received hereunder on behalf of such Person and to holdback from disbursement any such funds to the Stockholders extent it reasonably determines may be 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 waiver hereto, (vi) take all other actions to be taken by or on behalf of such Person in any litigation or arbitration involving connection herewith, (vii) negotiate, settle, compromise and otherwise handle all disputes under this Agreement, act as (viii) waive any condition to the paying agent obligation of such Person to consummate the transactions contemplated by this Agreement, (ix) give and receive notices on behalf of such Person and (x) do each and every act and exercise any and all rights which such Person 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 or refrain from doing all such further acts and things, perform each and execute all such documents as the Stockholders’ Representative shall deem every act and thing necessary or appropriate desirable to be done in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 as fully to act for all intents and purposes as Holdco and the Stockholders with regard might or could do in person. Such agency may be changed by Holdco or the Stockholders from time to matters pertaining time upon not less than thirty (30) calendar days prior written notice to indemnification referred 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, in this Agreement, including the power to compromise any indemnity claim on behalf event of a resignation of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described other vacancy in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf position of Stockholders Representative, such vacancy may be filled by the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held at least a majority of the ATS Common Stock immediately equity of Holdco prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 No bond shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of ParentRepresentative. After the Closing, Federal notices or the Surviving Corporation communications to or from the Stockholders with respect thereto. Representative shall constitute notice to or from Holdco and the Stockholders.
(b) The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable for any 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 the advice of counsel. The Stockholders for any loss or damages shall indemnify the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by hold the Stockholders from, and indemnified Representative harmless against any loss or damages and all losses, liabilities, damages, claims, penalties, fines, forfeitures, Actions, fees, costs and expenses arising out of or in connection with the performance acceptance or administration of her obligations the 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. 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 constitute a decision of Holdco and the Stockholders and shall be final, conclusive and binding upon Holdco and the Stockholders; and Purchaser, Parent and their respective Affiliates (including the Company) may rely upon any such decision, act, consent or instruction of the Stockholders Representative as being the decision, act, consent or instruction of Holdco and the Stockholders. 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 the provisions of this Agreementsuch decision, except for any act, consent or instruction of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders 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 appoint Laurel Services, LLC as the Stockholders’ Representative and 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 relating to claims to hold harmless, indemnify, compensate, reimburse or pay any Indemnitee hereunder; (iii) 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 actions contemplated for the Stockholders’ Representative in this Agreement and in the Escrow Agreement; (vii) to execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any other documents and agreements contemplated by this Agreement (including the Escrow Agreement); (viii) to make all elections or 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 is a party; (x) to engage, employ or appoint any agents or representatives (including attorneys, accountants and consultants) to assist the Stockholders’ Representative in complying with the Stockholders’ Representative’s duties and obligations; and (xi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all such matters relating to this Agreement (including Article VIII) and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any 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. 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 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 ▇▇▇▇▇▇▇ as ▇▇▇▇ shall, within ten (10) days after the true and lawful agent and attorney-in-fact (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) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative No bond shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment be required of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall not be liable for any act for done or omitted hereunder as Stockholders’ Representative except in each case if and to the Stockholders on all extent a court of the matters set forth in this Agreement in the manner competent jurisdiction has finally determined that the Stockholders’ Representative believes to be has engaged in the best interest willful misconduct. The holders of the Stockholders and consistent with the obligations under this Agreement, but Company Capital Stock shall severally indemnify the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred in good faith on the part of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation acceptance or substitution administration of the Stockholders’ Representative’s duties hereunder.
(d) The Stockholders’ Representative is serving in this capacity solely for purposes of administrative convenience. Notwithstanding anything 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 contrary herein, underlying assets of the Stockholders’ Representative shall have no liability for the satisfaction of any obligations of the holders of Company Capital Stock or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Management Contributors.
Appears in 1 contract
Sources: Merger Agreement (Accelrys, Inc.)
Stockholders’ Representative. The Stockholders hereby appoint ▇(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Jurvetson shall be constituted and appointed as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Indemnifying Target Parties to enter into the Escrow Agreement, act as to give and receive notices and communications made pursuant to this Agreement or the paying agent on behalf Escrow Agreement, to authorize delivery to an Acquiring Party of the Stockholdersall or a portion of Escrow Fund in satisfaction of claims by any of the Acquiring Parties against the Escrow Fund pursuant to this Agreement or the Escrow Agreement, do or refrain from doing all to object to such further acts deliveries, to agree to, negotiate, enter into settlements and thingscompromises of, and execute demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all such documents as the Stockholders’ Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf judgment of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit accomplishment of the Stockholders foregoing. Such agency may be changed by the holders of a majority in interest of the Escrow Fund from time to time upon not less than ten Business Days’ prior written notice to Acquiror. No bond shall be required of the Stockholders’ Representative, and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do receive no compensation for his/her services. Notices or cause communications to be done by virtue of her appointment as or from the Stockholders’ Representative shall constitute notice to or from each of the Stockholders. The Stockholders’ Representative shall act Indemnifying Target Parties for the Stockholders on all purposes of the matters set forth in this Agreement in and the manner Escrow Agreement with respect to claims against the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Escrow Fund.
(b) The Stockholders’ Representative shall not be responsible liable for any 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 Stockholders for any loss or damages the Stockholders may suffer by the performance by advice of counsel shall be conclusive evidence of such good faith. The Indemnifying Target Parties shall severally indemnify the Stockholders’ Representative and hold him/her harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 acceptance or administration of her 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 of his/her duties hereunder. The foregoing indemnity shall survive Upon any contemplated distribution from the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything Escrow Fund to the contrary hereinIndemnifying Target Parties, the Stockholders’ Representative shall have no liability or obligation the right to any Parent Indemnified Party otherwise thanrecover such losses, liabilities and only expenses from such distribution before it is made to the extent of, her individual liability as a Stockholder as Indemnifying Target Parties. In no event shall any bond be required by the Stockholders’ Representative.
(c) The approval by any Holder of the Merger shall be deemed to be approval of the terms of the provisions of this Section 14.17 and the indemnification obligations of the Holders set forth in Section 6.312, and the appointment of the Stockholders’ Representative.
(d) A decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all Holders and shall be final, binding and conclusive upon each such Holder, and the Acquiring Parties may rely exclusively upon any such decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Holder. Each of the Acquiring Parties 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 14.2), each of the Acquiring Parties shall be entitled to disregard any notices or communications given or made by the Holders unless given or made through the Stockholders’ Representative.
(e) In the event that the Stockholders’ Representative is unable to serve as the Stockholders’ Representative because of his or her death or disability or illness, or is unwilling to serve as Stockholders’ Representative for any reason whatsoever, then he or she shall appoint a successor Stockholders’ Representative, and if he or she is unable or unwilling to appoint a successor Stockholders’ Representative, the Indemnifying Target Parties shall, as promptly as practicable, vote to elect a successor Stockholders’ Representative. A successor Stockholders’ Representative shall be elected by the affirmative vote, or written consent, of a majority of the votes cast by Indemnifying Target Parties (or their heirs, personal representatives, successors or assigns) with each Indemnifying Target Party being entitled to cast one vote for each dollar of Merger Consideration allocated to such Indemnifying Target Party pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Edgar Online Inc)
Stockholders’ Representative. 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 hereby appoint 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 shall have irrevocably appointed ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ to act together as the true and lawful agent and attorney-in-fact for and on behalf of the Indemnifying Stockholders (the “Stockholders’ ' Representative”) of 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 the Stockholders with full power of substitution to act Stockholders' Representative acting for such Stockholder and in the such Stockholder’s name, place and stead 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 Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate Closing in connection with the transactions contemplated by this Agreementthe 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 limitationexecuting and delivering any documents, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise incurring any indemnity claim costs and expenses on behalf of the Stockholders Stockholders) and to transact matters of litigation;
2.4.2 to execute make any and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary determinations which may be required or appropriate permitted in connection with the consummation post-Closing implementation of this Agreement and related agreements and the transactions contemplated by hereby and thereby;
(ii) give and receive notices 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;
2.4.3 (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 paying agent and to receive funds and give receipts for fundsother Stockholders, including 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 adjustments 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 the Purchase Price10.17(a), and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf each of the Stockholders acknowledge and agree that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement such Person as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing appointed by the Stockholders who held a majority of 2/3 of the ATS Common Stock 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. If The Stockholders' Representative may resign at any individual time; provided that it must provide the Stockholders should die 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 and all actions taken or become incapacitatednot taken, if exercises of rights, power or authority and any trust decision or estate should terminate or if any other such event should occur, any action taken determination made by the Stockholders’ ' Representative pursuant to this Section 2.4 in connection herewith shall be as valid absolutely and irrevocably binding upon the Indemnifying Stockholders as if such death Person had taken such action, exercised such rights, power or incapacityauthority or made such decision or determination in its individual capacity, termination and the Escrow Agent and the Parent may rely upon such action, exercise of right, power, or other event had not occurred, regardless authority or such decision or determination of whether or not the Stockholders’ ' Representative as the action, exercise, right, power, or authority, or decision or determination of such Person, 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 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 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 ATS to the Stockholders shall be made its relationship to the Stockholders’ Representative ' Representative, except for fraud or willful misconduct. In the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all event that the Stockholders’ ' Representative shall do determines that any expense or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss payment is appropriate or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 desirable in connection with the performance exercise of her obligations its duties as Stockholders' Representative or otherwise in connection with the protection of the rights of the Stockholders, then each Stockholder shall, in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law instructions provided by the Stockholders’ Representative ' Representative, provide its pro-rata portion of her duties hereunder. The foregoing indemnity shall survive such payment or expense (determined by the resignation or substitution pro-rated Allocable Portion of the Stockholders’ Representative. Notwithstanding anything 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 contrary herein, the Stockholders’ ' Representative shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth non refundable advance for reimbursement of the costs and expenses incurred by him in Section 6.3connection with performance of his duties ("Stockholders' Representative Fund").
Appears in 1 contract
Sources: Merger Agreement (Nice Systems LTD)
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Davi▇ ▇▇▇▇▇▇ (▇▇, in the event that Davi▇ ▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, Rich▇▇▇ ▇▇▇▇▇▇▇▇▇▇) ▇▇ as be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Stockholder, with full power of substitution in his or her name and on his or her behalf to act according to the terms of this Agreement in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf absolute discretion of the Stockholders, do or refrain from doing all such further acts and things' Representative, and execute in general to do all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, things and to perform all acts including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders executing and to transact matters of litigation;
2.4.2 to execute and deliver delivering all ancillary agreements, certificates certificates, receipts, instructions and documents that the Stockholders’ Representative deems necessary other instruments contemplated by or appropriate deemed advisable in connection with the consummation Article 12 of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and the other Stockholders hereunder and in consideration of the Stockholders’ Representative shall be deemed coupled with an interest mutual covenants and agreements made herein, and shall be irrevocableirrevocable 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 Parentall actions, Federal decisions, notices and ATS may conclusively and absolutely relyexercises of any rights, without inquirypower or authority proposed to be done, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies given or is otherwise unable to serve as the Stockholders’ taken by such Stockholder Representative, the successor Stockholders’ Representative and shall be designated in writing act as directed by the Stockholders who held holding a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement interest in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability Escrow Property (as a Stockholder as set forth defined in Section 6.34.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. The execution, delivery and performance by the Stockholders' Representative (on behalf of the Selling Stockholders) of the Transaction Documents and the consummation by the Stockholders' Representative (on behalf of the Selling Stockholders) of the Transactions are within the power and authority granted to the Stockholders' Representative by the Selling Stockholders. Each of the Transaction Documents to which the Stockholders' Representative is or will be a party has been and will be duly executed and delivered by the Stockholders' Representative on behalf of the Selling Stockholders hereby appoint ▇▇▇▇▇▇▇ constitutes the legal, valid and binding obligation of the Stockholders' Representative, enforceable against her in accordance with its terms. Each of the Selling Stockholders has appointed the Stockholders' Representative as the true and lawful his, her or its representative, agent and attorney-in-in fact (to enter into the “Stockholders’ Representative”) Transaction Documents and to perform all of the Stockholders with full power such Selling Stockholder's obligations and to exercise all of substitution such Selling Stockholder's rights thereunder pursuant to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreementa validly executed appointment hereunder, and to act on behalf of the Stockholders in any litigation Stockholders' Representative has accepted each such appointment. A decision, act, consent or arbitration involving this Agreement, act as the paying agent on behalf instruction of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ ' Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative Transaction Documents shall be deemed coupled with an interest constitute a decision for each Selling Stockholder and shall be irrevocablefinal, binding and conclusive upon each Selling Stockholder, and Parent, Federal and ATS the Parent may conclusively and absolutely relyrely upon such decision, without inquiryact, upon any action consent or instruction of the Stockholders’ Stockholder Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resignsas being the decision, dies act, consent or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority instruction of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3each Selling Stockholder.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ (a) Upon approval of the Merger and this Agreement by the Stockholder Parties, each Stockholder Party will be deemed to have irrevocably appointed SCP Private Equity Management, LP., as the its, his or her true and lawful agent and attorney-in-fact and agent (the “Stockholders’ Representative”) of the Stockholders ), each with full power of substitution or resubstitution, to act in the name, place solely and stead exclusively on behalf of the Stockholders such Stockholder Party with respect to the surrender of the stock certificates owned transactions contemplated by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, including the Merger, and to act on behalf of the Stockholders such Stockholder Party in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, 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 Agreementhereby, including, without limitation, including the power:
2.4.1 (i) to act for the Stockholders 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 the Stockholders and such Stockholder Party;
(ii) to transact act for such Stockholder Party with regard to matters of pertaining to litigation;
2.4.2 (iii) to execute and deliver all ancillary agreements, certificates and documents in connection with the transactions contemplated hereby or amendments thereto that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreementappropriate;
2.4.3 to act as the paying agent and (iv) to receive funds funds, make payments of funds, and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (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 the Stockholders such Stockholder Party that the Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such Stockholder Party could do if personally present; and
2.4.5 (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 ParentBuyer, Federal Merger Subsidiary and ATS any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any Any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall must be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not in writing and must be signed by the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other eventRepresentative. All notices required to be made or delivered by Parent, Federal Buyer or ATS Merger Subsidiary to the Stockholders Company described above shall be made to the Stockholders’ Representative for the benefit of the Stockholders such Stockholder Party and shall discharge in full all notice requirements of ParentBuyer or Merger Subsidiary, Federal or the Surviving Corporation as applicable, to the Stockholders such Stockholder Party with respect thereto. The Stockholders hereby By their appointment of the Stockholders’ Representative, the Stockholder Parties thereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her his appointment as the Stockholders’ Representative representatives of the StockholdersStockholder Parties hereunder. The Stockholders’ Representative shall act for the Stockholders 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 Stockholders Stockholder Parties and consistent with the obligations of the Stockholder Parties under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders any Stockholder Party for any loss or damages which the Stockholders Stockholder Parties may suffer by the performance by of the Stockholders’ Representative of her Representative’s duties under this Agreement, other than loss or damage damages arising from willful violation of applicable law or gross negligence in the law by the Stockholders’ Representative performance of her such duties under this Agreement. The Stockholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and her heirs and personal no implied covenants, functions, responsibilities, duties or legal representatives liabilities shall be held harmless read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders’ Representative Fund shall be used to pay expenses incurred by the Stockholders fromStockholders’ Representative. By virtue of the approval of the Merger, 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 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 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 indemnified (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 loss kind (whether known or damages unknown, fixed or contingent) arising out of or in connection with (a) the performance 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 her obligations the Stockholders’ Representative’s authority, provided that he or his agent or assign has not acted with intentional misconduct or fraud in accordance with taking such action.
(c) In the provisions 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, except for and shall be fully protected in relying, upon any of statements furnished to it by the foregoing arising out of the willful violation of the law Company, any Stockholder Party, Buyer, Merger Subsidiary, or any other evidence deemed by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary hereinbe reliable, and the Stockholders’ Representative shall have no liability or obligation be entitled to any Parent Indemnified Party otherwise than, and only to act on the extent of, her individual liability as a Stockholder as set forth in Section 6.3advice of counsel selected by it.
Appears in 1 contract
Sources: Merger Agreement (CDC Corp)
Stockholders’ Representative. The Stockholders hereby appoint (a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (such person and any successor or successors being the "Stockholders' Representative") shall act as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) representative of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this AgreementTendering Stockholders, and shall be authorized to act on behalf of the Tendering Stockholders in and to take any litigation and all actions required or arbitration involving permitted to be taken by the Stockholders' Representative under this Agreement, act as Agreement with respect to any claims (including the paying agent on behalf settlement thereof) made by an Indemnified Party for indemnification pursuant to this Section 7 and with respect to any actions to be taken by the Stockholders' Representative pursuant to the terms of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Escrow Agreement. The Stockholder Representative shall deem necessary or appropriate in connection be entitled to exercise power with respect to the transactions contemplated by this Agreementforegoing, including, without limitation, to (i) authorize the power:
2.4.1 delivery of amounts from the Escrow to act an Indemnified Party in satisfaction of claims by an Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification, and (iii) take all actions necessary in the judgment of the Stockholders' Representative for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf accomplishment of the Stockholders and to transact foregoing. In all matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter foregoing, the Stockholders' Representative shall be the only party entitled to assert the rights of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this AgreementTendering Stockholders. The appointment Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Stockholders’ ' Representative. The Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon is not entitled to amend this Agreement or take any action of the Stockholders’ Representative in all matters referred actions relating to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately this Agreement prior to the Closing. If any individual .
(b) The Tendering Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action shall be bound by all actions taken by the Stockholders’ ' Representative in his capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Stockholders' Representative shall promptly, and in any event within ten business days, provide written notice to the Tendering Stockholders of any action taken on behalf of them by the Stockholders' Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made authority delegated to the Stockholders’ ' Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretounder this Section 7. The Stockholders hereby confirm Stockholders' Representative shall at all times act in his or her capacity as Stockholders' Representative in a manner that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ ' Representative believes to be in the best interest of the Stockholders and consistent with Tendering Stockholders. Neither the obligations Stockholders' Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, but except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders’ ' Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders' Representative shall not be responsible have any duty to ascertain or to inquire as to the Stockholders performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Stockholders' Representative shall not exercise any loss discretion or damages take any action.
(c) Each Tendering Stockholder on whose behalf a portion of its consideration was contributed to the Stockholders may suffer by Escrow shall, severally and not jointly, hold harmless and reimburse the performance Stockholders' Representative from and against such Tendering Stockholder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders’ ' Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 resulting from any action taken or omitted to be taken by the performance Stockholders' Representative as Stockholder Representative under this Agreement or the Escrow Agreement ("STOCKHOLDER REPRESENTATIVE EXPENSES"), other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of her obligations in accordance with any legal counsel retained by the provisions of this Agreement, except for any of the foregoing Stockholders' Representative) arising out of or resulting from the Stockholders' Representative's gross negligence, bad faith or willful violation misconduct; provided, however, that no such Tendering Stockholder shall be liable in excess of such Tendering Stockholder's pro rata portion of the law by Escrow. The Stockholders' Representative shall be entitled to recover up to $500,000 of any Stockholder Representative Expenses paid to third parties from the Escrow at any time prior to the distribution of funds to the Tendering Stockholders. In the event there are any remaining funds in the Escrow to be distributed to stockholders of the Company immediately prior to the final distribution from the Escrow pursuant to the Escrow Agreement, the Stockholders’ ' Representative shall be entitled to recover any such expenses in excess of her duties hereunder. The foregoing indemnity shall survive $500,000 from the resignation or substitution Escrow prior to the distribution of funds to the Tendering Stockholders’ Representative. .
(d) Notwithstanding anything to the contrary hereinherein or in the Escrow Agreement, the Stockholders’ ' Representative is not authorized to, and shall not, accept on behalf of any Tendering Stockholder any consideration to which such Tendering Stockholder is entitled under this Agreement and the Stockholders' Representative shall have no liability not in any manner exercise, or obligation seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Purchasers now or hereafter owned of record or beneficially by any Tendering Stockholder unless the Stockholders' Representative is expressly authorized to do so in a writing signed by such Tendering Stockholder.
(e) In the event of the resignation, removal, death or incapacity of the Stockholders' Representative, a successor shall thereafter be appointed by an instrument in writing signed by such successor and by the Tendering Stockholders holding a majority of the outstanding shares of Common Stock of the Company immediately prior to the Closing, and such appointment shall become effective as to any Parent Indemnified Party otherwise than, and only such successor when a copy of such instrument shall have been delivered to the extent of, her individual liability as a Stockholder as set forth Purchasers in accordance with Section 6.310.5.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock Purchase Agreement (Limelight Networks, Inc.)
Stockholders’ Representative. The For purposes of this Agreement, the Stockholders hereby appoint consent to, confirm and irrevocably effect the appointment of Garl▇▇ ▇. ▇▇▇▇▇▇▇ mes as the true Representative, as representative of the Stockholders, and lawful agent and as the attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of each Stockholder, and, subject to the Stockholders in express limitations set forth below, the taking by the Representative of any litigation and all actions and the making of any decisions required or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated permitted to be taken by him under this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including exercise of the power to compromise (i) authorize delivery to Universal of the Escrow Shares or any indemnity claim 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 the Stockholders and each Stockholder with respect to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent disposition, settlement or other handling of all Claims, rights or obligations arising under this Agreement so long as fully and completely as all Stockholders are treated in the same manner. The Stockholders could do if personally present; and
2.4.5 to receive service of process will be bound by all actions taken by the Representative in connection with any claims under this Agreement. The appointment , and Universal will be entitled to rely on any action or decision of the Stockholders’ Representative. In performing his functions hereunder, the Representative shall will not be deemed coupled with an interest 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 shall be irrevocabledischarged from his duties or obligations hereunder by giving his resignation to the parties to this Agreement, and Parentspecifying a date not less than ten days following such notice date of when such resignation will take effect and, Federal and ATS may conclusively and absolutely relyin that event, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If Jame▇ ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable ▇▇▇l be deemed to serve be appointed by the Stockholders as the Stockholders’ new Representative. In the event Mr. ▇▇▇▇▇▇▇ ▇▇▇n becomes unavailable or unwilling to continue in his capacity as Representative, he 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. In that event, the Stockholder(s) owning a majority of the Escrow Shares will designate a successor Stockholders’ 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 designated 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 Stockholders who held a majority Representative that he has resigned, the Escrow Agent may rely conclusively and act upon the directions, instructions and notices of the ATS Common Stock immediately prior to Representative named above and, thereafter, upon the Closing. If directions, instructions and notices of any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken successor Representative named in a writing executed by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best a majority-in-interest of the Stockholders and consistent filed with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3Escrow Agent.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Dona▇▇ ▇. ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this AgreementDona▇▇ ▇. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns▇▇ unable or unwilling to serve, dies or is otherwise unable to serve as Virg▇▇▇▇ ▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders’ ' Representative, the successor Stockholders’ Representative "). The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action 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 Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and 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 best interest of such Stockholder and the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to the Stockholders for terminated by any loss act of any Stockholder or damages the Stockholders may suffer by the performance by the Stockholders’ Representative operation of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3law.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Unicapital Corp)
Stockholders’ Representative. (a) Appointment. The Stockholders Stockholders, and each of them, hereby 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▇▇▇▇▇▇▇ as of ▇▇▇▇▇ agreements and this transaction, and the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) rendering of the Stockholders with full power of substitution requisite legal opinion, and (C) an amount required to act compensate Lowry and Watson, P.A. for rendering accounting services in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ne▇▇▇▇▇tion ▇▇ resigns, dies or is otherwise unable to serve ▇▇▇se agreements and this transaction. For purposes of this Section 11.1 "pro rata" means the same proportion as that which the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior total cash proceeds for such Stockholder at Closing as set forth on Schedule 2.1 hereto bears to the Closing. If any individual total cash proceeds for all Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be at Closing as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholdersset forth on Schedule 2.1 hereto. The Stockholders’ ' Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3hereby accepts such appointment.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Herley Industries Inc /New)
Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ (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 true and lawful 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 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 VNC Stockholders with full power and to enforce and protect the rights and interests of substitution such Persons arising out of or under or in any manner relating to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, 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 litigation 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 arbitration involving (B) the appointment of a successor by the VNC Stockholders. By executing this Agreement, Agreement the Stockholders’ Representative hereby (x) accepts its appointment and authorization to act as the paying Stockholders’ Representative as attorney-in-fact and agent on behalf of the Stockholders, do or refrain from doing all such further acts Stockholders in accordance with the terms of this Agreement and things(y) agrees to perform its obligations under, and execute otherwise comply with, this Section 7.5.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and 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 such documents as or any of the powers conferred upon the Stockholders’ Representative hereunder, (i) the Stockholders’ Representative shall deem necessary incur no responsibility whatsoever to any VNC Stockholders by reason of any error in judgment or appropriate in connection with the transactions contemplated by this Agreementother act or omission performed or omitted hereunder, including, without limitation, the power:
2.4.1 excepting only responsibility for any act or failure to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders which represents willful misconduct and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of (ii) the Stockholders’ Representative shall be deemed 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 (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 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 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 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 irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any VNC Stockholder and (ii) shall survive the consummation of the Mergers, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 2.4 Agreement shall be as valid as if effective and absolutely binding on each VNC Stockholder notwithstanding any contrary action of or direction from such death VNC Stockholder, except for actions or incapacity, termination or other event had not occurred, regardless omissions of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice constituting willful misconduct.
(f) Each of such deathVNC, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders Merger Subs and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all CHC acknowledges and agrees that the Stockholders’ Representative shall do or cause is a party to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes solely to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 perform certain administrative functions in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any consummation of the foregoing arising out transactions contemplated hereby. Accordingly, each of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of VNC, Merger Subs and CHC acknowledges and agrees that, other than in the Stockholders’ Representative. Notwithstanding anything to the contrary herein’s role as a VNC Stockholder (if applicable), the Stockholders’ Representative shall have no liability to, and shall not be liable for any Losses of, any of VNC, Merger Subs or obligation CHC or to any Parent Indemnified Party Person in connection with any obligations of the Stockholders’ Representative under this Agreement or otherwise thanin respect of this Agreement or the transactions contemplated hereby, and only except to the extent of, her individual liability as a Stockholder as set forth such Losses shall be proven to be the direct result of fraud by the Stockholders’ Representative in Section 6.3connection with the performance by the Stockholders’ Representative of its obligations hereunder.
Appears in 1 contract
Stockholders’ Representative. The (a) Upon adoption of this Agreement by the Stockholders, Stockholders’ Representative is hereby appointed, authorized and empowered (and by its execution of this Agreement as Stockholders’ Representative, M/C Venture Partners V, L.P. hereby accepts such appointment) to act as Stockholders’ Representative for all purposes hereof, as the attorney-in-fact and agent for and on behalf of each Stockholder and each Stockholder’s respective heirs, successors and assigns with full power in each such Stockholder’s name and on such Stockholder’s behalf to act according to the terms of this Agreement in the absolute discretion of Stockholders’ Representative, including with respect to the delivery of the cash payments to be made to the Stockholders hereby appoint pursuant to this Agreement, asserting or defending claims for indemnification under Article 7, hiring consultants, making payments to third parties and taking by Stockholders’ Representative all other actions it deems appropriate under the circumstances and any and all actions and the making of any decisions required or permitted to be taken by Stockholders’ Representative or any of the Stockholders under this Agreement, including the exercise of the power to do any of the following: (a) authorize the release or delivery to Buyer of all or any portion of the Indemnity Escrow Amount in satisfaction of indemnification claims by Buyer or any other Buyer Indemnitee pursuant to Article 7; (b) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, such indemnification claims; (c) litigate, arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to Article 7; (d) receive and distribute payments pursuant to the Escrow Agreement; (e) take all actions specified to be taken by Stockholders’ Representative with respect to the determination of the Final Purchase Price pursuant to Section 2.7; (f) to deliver and receive notices, communications and consents under this Agreement and the Escrow Agreement, including the Closing Exhibit D; (g) to waive any provision of this Agreement or the Escrow Agreement as Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (h) to investigate, defend, contest or litigate any action or suit initiated by any Person against Stockholders’ Representative, the Working ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Environmental Remediation Escrow or the Indemnity Escrow; (i) negotiate, enter into settlements and compromises of, resolve and comply with Orders and awards of arbitrators or other third party intermediaries with respect to any disputes arising under this Agreement or the Escrow Agreement as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”, in its sole discretion, may deem necessary or desirable; (j) to agree to any offsets or other additions or subtractions of amounts to be paid under this Agreement or the Escrow Agreement as Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; and (k) to make, execute, acknowledge and deliver all such other contracts, 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 Stockholders’ Representative, in its sole discretion, may consider necessary or proper or convenient in connection with or to carry out or for the accomplishment of the Stockholders with full activities described in this Section 2.11 and the transactions contemplated by this Agreement or by the Escrow Agreement. The powers of attorney granted under this Section 2.11, and all authority hereby conferred is granted and shall be irrevocable and shall not be terminated by any act of any Stockholder, by operation of law, whether by such person’s death, disability, protective supervision or any other event. Without limiting the foregoing, these powers of attorney are to ensure the performance of a special obligation and, accordingly, by approval of the Merger, or by executing a Transmittal Letter, each Stockholder, shall, to the fullest extent permitted by Law, be deemed to have waived and renounced such Stockholders’ right to renounce this power of substitution attorney unilaterally. By approval of the Merger or by executing a Transmittal Letter, each Stockholder, shall, to the fullest extent permitted by Law, be deemed to have waived any and all defenses that may be available to contest, negate or disaffirm the action of Stockholders’ Representative taken in good faith. Stockholders’ Representative shall have authority and power to act in the name, place and stead on behalf of the Stockholders with respect to the surrender disposition, settlement or other handling of all claims under Article 7 and all rights or obligations arising under Article 7, including all rights to the stock certificates owned Working Capital Escrow Amount, the Environmental Remediation Escrow Amount and the Indemnity Escrow Amount. The Stockholders shall, to the fullest extent permitted by law, be bound by all actions taken and documents executed by Stockholders’ Representative in connection with Article 7, and Buyer shall be entitled to rely on any action or decision of Stockholders’ Representative. In performing the Stockholders to Federal functions specified in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative may act upon any instrument or other writing believed by Stockholders’ Representative in good faith to be genuine and to be signed or presented by the proper Person and shall deem necessary or appropriate not, to the fullest extent permitted by Law, be liable to any Stockholder in connection with the transactions contemplated performance by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of its duties in the absence of reckless or intentional misconduct on the part of Stockholders’ Representative as to the interests of the Stockholders. The Notwithstanding the power of attorney granted in this Section 2.11, no agreement, instrument, acknowledgement or other act or document shall be ineffective solely by reason of a Stockholder (instead of Stockholders’ Representative) having signed or delivered the same directly.
(b) Each Stockholder hereby agrees that Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreementshall, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer fullest extent permitted by the performance by the Stockholders’ Representative of her duties under this AgreementLaw, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative be indemnified and her heirs and personal or legal representatives shall be held harmless by the Stockholders fromStockholders, severally (in accordance with their respective Proportionate Escrow Share) from and indemnified against any loss loss, liability or damages expense incurred without reckless or intentional misconduct on the part of Stockholders’ Representative toward the Stockholders and arising out of or in connection with the performance acceptance or administration of her obligations its duties hereunder as to the interests of the Stockholders. Any out-of-pocket costs and expenses incurred by Stockholders’ Representative in connection with actions taken by Stockholders’ Representative pursuant to the terms of this Agreement, including the hiring of legal counsel and the incurring of legal fees and costs (collectively, the “Representative Expenses”) shall be the responsibility of the Stockholders, severally (in accordance with their respective Proportionate Escrow Share). Upon final distribution of the Working Capital Escrow Amount, the Environmental Remediation Escrow Amount or the Indemnity Escrow Amount in accordance with the terms of the Escrow Agreement, Stockholders’ Representative shall be entitled to retain, out of the aggregate portion of funds in the Working Capital Escrow, the Environmental Remediation Escrow or the Indemnity Escrow that otherwise are to be distributed to the Stockholders, if any, pursuant to the terms of this Agreement any unpaid Representative Expenses to the extent the same have not theretofore been paid out of the Expense Fund Amount. As soon as practicable after the final distribution of the Working Capital Escrow, the Environmental Remediation Escrow and the Indemnity Escrow, Stockholders’ Representative shall disburse to the Stockholders (in proportion to their respective Proportionate Escrow Share) any Expense Fund Amount not used or reserved to pay Representative Expenses. Without limiting the generality of the foregoing, Stockholders’ Representative shall have full power and authority to interpret all the terms and provisions of this Merger Agreement, except for and to consent to any amendment hereof or thereof, on behalf of all the Stockholders and their respective heirs, successors and assigns.
(c) Stockholders who in the aggregate are entitled to receive a majority of the foregoing arising out of aggregate Per Share Merger Consideration pursuant to Section 2.4 shall have the willful violation of right at any time to remove the law by the then-acting Stockholders’ Representative and to appoint a successor Stockholders’ Representative; provided, that the successor Stockholders’ Representative so appointed accepts the duties of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution Stockholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement applicable to Stockholders’ Representative. Each successor Stockholders’ Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Stockholders’ Representative, and the term “Stockholders’ Representative” as used herein and shall be deemed to include any interim or successor Stockholders’ Representative.
(d) Notwithstanding anything to the contrary contained herein, the Stockholders’ Representative Company shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only act on its own behalf at all times prior to the extent ofEffective Time, her individual liability shall sign on its own behalf and shall not appoint any Person as a Stockholder as set forth in Section 6.3its lawful attorney-in-fact.
Appears in 1 contract
Sources: Merger Agreement (SAVVIS, Inc.)
Stockholders’ Representative. The Stockholders (a) By the execution and delivery of this Agreement, each Stockholder hereby appoint irrevocably constitutes and appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as the his, her or its true and lawful agent and attorney-in-fact (together, the “Stockholders’ Representative”) of the Stockholders ), with full power of substitution to act in the such Stockholder’s name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned all transactions contemplated by the Stockholders to Federal in accordance with the and all terms and provisions of this AgreementAgreement and the Escrow Agreement (as defined in Section 1.10), and to act on such Stockholder’s behalf of the Stockholders in any dispute, litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, and to do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation, the power:
2.4.1 (i) to act for waive any condition to the Stockholders with regard obligations of such Stockholder to matters pertaining consummate the transactions contemplated by this Agreement;
(ii) to indemnification referred make any and all decisions entitled to in this be made thereby under the Escrow Agreement, including the power to compromise without limitation, any indemnity claim on behalf and all decisions about distribution of any amounts out of the Stockholders and to transact matters of litigationEscrow Fund;
2.4.2 (iii) to execute and deliver all ancillary agreements, certificates and documents that documents, and to make representations and warranties therein, on behalf of such Stockholder which the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the Escrow Agreement;; and
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (iv) to do or refrain from doing any further act or deed on behalf of the Stockholders that such Stockholder which the Stockholders’ Representative deems necessary or appropriate in her its sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement Escrow Agreement, as fully and completely as the Stockholders such Stockholder could do if personally present; and.
2.4.5 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 ParentHarbor, Federal its affiliates and ATS 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. If ▇▇▇▇▇▇▇ resigns, dies All notices delivered by Harbor or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to Company (following the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made ) to the Stockholders’ Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders and shall discharge in full all constitute 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 her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest interests of the Stockholders and consistent with the his obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders they may suffer by reason of the performance by the Stockholders’ Representative of her his duties under this Agreement, other than loss or damage arising from willful violation of the law 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 her duties under this Agreement. The the Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against but excluding any loss or damages damage arising out of or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the from willful violation of the law law.
(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 1.9 shall be conclusive and binding upon each Stockholder, and no Stockholder shall have the right to object, dissent, protest or 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 based on such advice.
(e) The provisions of her duties hereunder. The foregoing indemnity this Section 1.9 are independent and severable, shall survive constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything Stockholders to the contrary herein, the Stockholders’ Representative and shall have no liability be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder.
(f) Harbor shall be entitled to rely on any written communication delivered to Harbor from the Stockholders’ Representative which it reasonably believes to be genuine. The Stockholders shall indemnify and hold Harbor harmless from any act or obligation failure to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3act based upon such reliance.
Appears in 1 contract
Sources: Stock Purchase Agreement (Harbor Acquisition Corp.)
Stockholders’ Representative. The By the approval of this Agreement pursuant to applicable Law and execution of the Stockholder Consent,
(a) Each Stockholder irrevocably appoints the Stockholders hereby appoint ▇▇▇▇▇▇▇ Representative as the true and lawful representative, agent and attorney-in-fact (proxy for all the “Stockholders for all purposes under this Agreement including the full power and authority to act on the Stockholders’ Representative”behalf: (i) of to consummate the Stockholders with full power of substitution transactions contemplated under this Agreement (including the adjustments under Section 2.4) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (ii) to act in the namenegotiate disputes arising under, place and stead of the Stockholders or relating to, this Agreement (including with respect to the surrender adjustments under Section 2.4) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith; (iii) to receive and disburse to the Stockholders any funds received on behalf of the stock certificates owned Stockholders under this Agreement or otherwise; (iv) to withhold any amounts received on behalf of the Stockholders to this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the Stockholders or the Stockholders Representative in the performance of their duties hereunder; (v) to Federal in accordance with execute and deliver any amendment or waiver to this Agreement and the terms and provisions of this Agreementother agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Stockholders); and (vi) to act take all other actions to be taken by or on behalf of the Stockholders in any litigation connection with this Agreement (including with respect to the adjustments under Section 2.4) and the other agreements, instruments, and documents contemplated hereby or arbitration involving executed in connection herewith. The Stockholders, by approving this Agreement, act as further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the paying agent on behalf consent of the Stockholders Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder. All decisions and actions by the Stockholders Representative shall be binding upon all of the Stockholders, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts and thingsotherwise contest the same. The Stockholders Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and execute such duties and obligations shall be determined solely by the express provisions of this Agreement.
(b) Each Stockholder severally, for itself only and not jointly, agrees to indemnify and hold harmless the Stockholders Representative and its partners, managers, officers, agents and other Representatives against all expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by such documents as the Stockholders’ Representative shall deem necessary or appropriate Persons in connection with any action, suit or proceeding to which the Stockholders Representative or such other Person is made a party by reason of the fact that it is or was acting as, or at the direction of, the Stockholders Representative pursuant to the terms of this Agreement.
(c) Neither the Stockholders Representative nor any of its members, managers, officers, agents or other Representatives shall incur any liability to any Stockholder by virtue of the failure or refusal of such Persons for any reason to consummate the transactions contemplated hereby or relating to the performance of their duties hereunder, except for actions or omissions constituting intentional and knowing fraud. The Stockholders Representative and its members, managers, officers, agents and other Representatives shall have no liability in respect of any action, claim or proceeding brought against such Persons by this Agreementany Stockholder, includingregardless of the legal theory under which such liability or obligation may be sought to be imposed, without limitationwhether sounding in contract or tort, or whether at law or in equity, or otherwise, if such Persons took or omitted taking any action in good faith.
(d) Following the date that is the earlier of (x) twelve months from the Closing Date or (y) the later of (i) the final determination of all adjustments pursuant to Section 2.4 and (ii) full reimbursement of all Charges (as defined below), the power:
2.4.1 to act for Stockholders Representative shall distribute any remaining portion of the Stockholders Representative Expense Holdback Amount to the Stockholders on a pro rata basis (calculated based on the Fully Diluted Stock Count), it being understood and agreed that such distributions shall be the responsibility of the Stockholders Representative only and that neither Buyer nor the Surviving Corporation shall have any obligation to ensure that such distribution is, or distributions are, made. The Stockholders Representative shall have the right to recover from, in its sole discretion, the Representative Expense Holdback Account prior to any distribution to the Stockholders, the Stockholders Representative’s (including its Representatives) reasonable out-of-pocket expenses incurred in the performance of its duties hereunder (the “Charges”). In the event the Stockholders Representative Expense Holdback Amount is insufficient to satisfy the Charges, then each Stockholder will be obligated to pay its pro rata portion (calculated based on the Fully Diluted Stock Count) of such deficit.
(e) At any time prior to the distribution of the Stockholders Representative Expense Holdback Amount pursuant to Section 8.14(d) above, a majority-in-interest of the Stockholders may, by written consent, appoint a new representative as the Stockholders Representative. Notice together with regard a copy of the written consent appointing such new representative and bearing the signatures of Stockholders of a majority-in-interest of those Stockholders must be delivered to matters pertaining Buyer and each other Stockholder not less than ten days prior to indemnification referred such appointment. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer. For the purposes of this paragraph (e), a “majority-in-interest of the Stockholders” shall mean Stockholders holding more than 50% of the Shares entitled to vote at a duly called meeting of Stockholders to vote thereon.
(f) In the event that the Stockholders Representative becomes unable or unwilling to continue in this Agreementhis or its capacity as Stockholders Representative, including or if the power Stockholders Representative resigns as the Stockholders Representative, a majority-in-interest of the Stockholders may, by written consent, appoint a new representative as the Stockholders Representative. Notice and a copy of the written consent appointing such new representative and bearing the signatures of a majority-in-interest of the Stockholders must be delivered to compromise Buyer and each Stockholder. Such appointment will be effective upon the later of the date indicated in the consent or the date such consent is received by Buyer.
(g) Buyer shall be entitled to rely upon any indemnity claim action or decision of, or instruction by, or any document or other paper delivered by, the Stockholders Representative on behalf of the Stockholders and (without any obligation to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that inquire into the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf authority of the Stockholders that Representative or the Stockholders’ Representative deems necessary genuineness or appropriate in her sole discretion relating to the subject matter correctness of this Agreement and the Paying Agent Agreement as fully and completely as such document or other paper or any signature of the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocableRepresentative), and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon Buyer shall not be liable to any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, Stockholder for any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required omitted to be made taken by Buyer in such reliance or delivered by Parentwith respect to actions, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit decisions and determinations of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (American Tire Distributors Holdings, Inc.)
Stockholders’ Representative. The (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby appoint desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the true and lawful agent and attorney-in-fact (Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the “Stockholders’ Representative”) Stockholders holding, immediately prior to the Closing, a majority of the Stockholders with full power outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of substitution to act in this Agreement and the name, place and stead documents delivered pursuant hereto.
(c) By virtue of the Stockholders with respect to adoption of this Agreement and the surrender approval of the stock certificates owned Merger by the Stockholders to Federal at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with with, the terms and applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to act be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders in after the Effective Time by the terms of this Agreement;
(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) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any litigation other actions required or arbitration involving permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative 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, act as the paying agent on behalf except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, do are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:;
2.4.1 to act (vii) remedies available at law for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf breach of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter provisions of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally presentSection 3.7. are inadequate; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocabletherefore, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or Merger Subsidiary and/or the Surviving Corporation shall have received notice be entitled to temporary and permanent injunctive relief without the necessity of such death, incapacity, termination or other event. All notices required to be made or delivered by proving damages if either Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or Merger Subsidiary and/or the Surviving Corporation brings an action 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 her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with enforce the provisions of this AgreementSection 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, except for heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any of references in this Agreement to a Stockholder or the foregoing arising out of Stockholders shall mean and include the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything successors to the contrary hereinStockholder's rights hereunder, whether pursuant to testamentary disposition, the Stockholders’ Representative shall have no liability laws of descent and distribution or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3otherwise.
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) By the execution and delivery of this Agreement, each Stockholder hereby appoint irrevocably constitutes and appoints Mr. Douglas Clark as stockholders' ▇▇▇▇▇▇▇ as ▇▇▇▇▇ive ("Stockholders' Representative") with the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution exclusive authority to act in accordance with Section 9.15(b). In the name, place and stead event of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreementdeath, and resignation or inability to act on behalf of the Stockholders in any litigation or arbitration involving this AgreementMr. Clark, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If Ms. Diane Montoy▇ ▇▇▇▇ ▇▇ suc▇▇▇▇▇▇ ▇▇▇▇▇▇▇ resigns▇▇▇ers' Representative with all powers of his predecessor.
(b) The Stockholders' Representative will have full power:
(i) to act on each Stockholder's behalf in accordance with the terms of this Agreement, dies to give and receive notices on behalf of all Stockholders and to act on their behalf in connection with any matter as to which one or more Stockholders is otherwise unable an "Indemnified Party" or "Indemnifying Party" under this Agreement, all in the absolute discretion of Stockholders' Representative;
(ii) in general, to serve as do all things and to perform all acts, including executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or in connection with this Agreement to substantiate the Stockholders’ Representative, representations or warranties or to perform the successor Stockholders’ Representative shall be designated in writing covenants made by the Stockholders who held a majority of the ATS Common Stock immediately prior herein; and
(iii) to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to amend this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit Agreement on behalf of the Stockholders and shall discharge solely with respect to administrative or technical revisions which will not substantially impact the economic terms of this Agreement. Notwithstanding anything in full all notice requirements of Parent, Federal or the Surviving Corporation this Section 9.15 to the Stockholders with respect thereto. The Stockholders hereby confirm all that contrary, the Stockholders’ ' Representative shall do will not be authorized to alter, change or cause to be done by virtue of her appointment as modify the Stockholders’ Representative Purchase Price on behalf of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on This power of attorney, and all authority hereby conferred, is granted in consideration of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders mutual covenants and consistent with the obligations under this Agreementagreements made herein, but the Stockholders’ Representative shall and is irrevocable and will not be responsible to the Stockholders for terminated by any loss act of any Stockholder or damages the Stockholders may suffer by operation of Law, whether by the performance death or incapacity of any Stockholder or by the Stockholders’ Representative occurrence of her duties under this Agreement, any other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreementevent. The Stockholders’ ' Representative and her heirs and personal or legal representatives shall will not be held harmless by liable for any action taken in the Stockholders from, and indemnified against any loss or damages arising out capacity of or in connection with the performance of her obligations Stockholders' Representative in accordance with the provisions terms of this Agreement, except for including the compromise, settlement, payment or defense of any claim (including expenses and costs associated therewith) under this Agreement regardless of whether any Stockholder is the foregoing arising out claimant or the party against whom a claim is being made. In connection with the exercise of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary hereinhis duties, the Stockholders’ ' Representative shall will be entitled to consult with and rely upon legal counsel and other professional advisors, with the costs thereof to be allocated among the Stockholders and will have no liability hereunder for actions taken in good faith reliance upon the advice of such advisers. Each Stockholder will, jointly and severally, hold the Stockholders' Representative harmless from any and all Losses which they, or obligation to any Parent Indemnified Party otherwise thanone of them, and only to the extent of, her individual liability may sustain as a Stockholder as set forth result of any action taken in Section 6.3good faith hereunder.
Appears in 1 contract
Stockholders’ Representative. The (a) By virtue of the approval of the Merger and this Agreement by the requisite vote of the Company Stockholders, each of the Company Stockholders hereby shall be deemed to have agreed to appoint ▇▇▇▇▇▇▇ JMI Equity Fund, L.P. as the true and lawful agent and attorney-in-fact (the “"Stockholders’ ' Representative”") of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Company Stockholders, do their respective Affiliates and their respective representatives to give and receive notices and communications, to organize or refrain from doing all such further acts assume the defense of third-party claims, to assign claims to individual Company Stockholders, to agree to, negotiate or enter into settlements and thingscompromises of, and execute demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims, and to take all such documents as the Stockholders’ Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment judgment of the Stockholders’ ' Representative for the accomplishment of the foregoing. Such agency may be changed by the holders of rights to receive at least sixty percent (60%) of the Merger Consideration upon not less than ten (10) days' prior written notice to Itron. No bond shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action required of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns' Representative, dies or is otherwise unable to serve as and the Stockholders’ ' Representative shall receive no compensation for services rendered; provided, however, that they shall be entitled to reimbursement of their expenses in serving as Stockholders' Representative, which amounts shall be deducted from the successor Escrow. Notices or communications to or from the Stockholders’ ' Representative shall be designated in writing by constitute notice to or from the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Company Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. .
(b) The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ ' Representative shall not be responsible liable to any of the Company Stockholders for any loss act done or damages omitted hereunder as Stockholders' Representative except to the Stockholders may suffer by extent they individually or collectively acted with gross negligence or willful misconduct, and any act done or omitted pursuant to the performance by advice of counsel shall be conclusive evidence that the Stockholders’ ' Representative of her duties under this Agreementdid not act with gross negligence or willful misconduct. The Company Stockholders shall severally and proportionately indemnify the Stockholders' Representative and hold them harmless against any loss, other than loss liability or damage arising from expense incurred without gross negligence or willful violation misconduct on the part of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ ' Representative and her 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 her obligations in accordance with the provisions of this Agreement, except for any acceptance or administration of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. .
(c) 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 reasonable access to information about the former Company Business and operations and the reasonable assistance of Itron's officers and employees for purposes of performing the duties and exercising the rights hereunder; provided, that the Stockholders' Representative shall treat confidentially and not disclose any nonpublic information from or obligation about Itron to any Parent Indemnified Party otherwise than, and only anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Stockholders' Representative shall be a third party beneficiary of the extent of, her individual liability as a Stockholder as set forth in terms of this Section 6.310.7(c).
Appears in 1 contract
Sources: Merger Agreement (Itron Inc /Wa/)
Stockholders’ Representative. The Stockholders Each Stockholder hereby appoint irrevocably appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders as such Stockholder’s representative, attorney-in-fact and agent, with full power of substitution to act in the name, place and stead of the Stockholders such Stockholder with respect to the surrender transfer of the stock certificates owned by the Stockholders such Stockholder’s shares of Company Stock to Federal Buyer in accordance with the terms and provisions of this Agreement, Agreement and to act on behalf of the Stockholders such Stockholder in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, Agreement and to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the such Stockholders’ Representative shall deem necessary or appropriate in connection with any of the transactions contemplated by under this Agreement, including, without limitation, the power:
2.4.1 (a) to act for take all action necessary or desirable in connection with the waiver of any condition to the obligations of the Stockholders with regard to matters pertaining to indemnification referred to in consummate the transactions contemplated by this Agreement;
(b) to receive, including hold, and deliver to Buyer the power to compromise certificates evidencing shares of Company Stock accompanied by executed stock powers and any indemnity claim other documents relating thereto on behalf of the Stockholders and to transact matters of litigationsuch Stockholder;
2.4.2 (c) to execute and deliver all ancillary agreements, certificates certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents that the Stockholders’ Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and (d) to receive funds and give receipts receipt for funds, including in respect of any adjustments the Per Share Purchase Price, to distribute to the Stockholders their Per Share Purchase Price, and any adjustment thereto;
(e) to terminate this Agreement if the Stockholders are entitled to do or refrain from doing the actions further described in the Paying Agent Agreementso;
2.4.4 (f) to institute, defend, compromise or settle any indemnification claims pursuant to Article XI of this Agreement (excluding indemnification claims under Section 11.2(b) hereof (relating to representations and warranties set forth in Article IV hereof) or Section 7.14 hereof);
(g) to give and receive all notices and communications to be given or received under this Agreement and to receive service of process in connection with any claims under this Agreement, including service of process in connection with arbitration; and
(h) to take all actions which under this Agreement may be taken by the Stockholders’ Representative and to do or refrain from doing any further act or deed on behalf of the Stockholders that the such Stockholder which Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such Stockholder could do if personally present; and
2.4.5 provided, that the Stockholders’ Representative shall (i) take reasonable steps to receive service keep the Stockholders informed; and (ii) exercise the foregoing powers in a reasonable and nondiscriminatory manner taking into account the interests of process in connection with all Stockholders and treating all Stockholders equally on a pro-rata basis. The death or incapacity of any claims under this AgreementStockholder shall not terminate the agency and power of attorney granted hereby to the Stockholders’ Representative. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocableirrevocable and, notwithstanding the proviso at the end of the foregoing paragraph, Buyer and Parent, Federal and ATS any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative Representative, as the action of Stockholders in all matters referred to herein. If ▇▇▇▇▇▇▇ resignsAll actions, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor decisions and instructions of Stockholders’ Representative shall be designated in writing by conclusive and binding upon all of the Stockholders who held a majority and no Stockholder shall have any cause of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die action against Buyer or become incapacitated, if any trust or estate should terminate or if any other such event should occur, Stockholders’ Representative for any action taken or not taken by Stockholders’ Representative in his role as such, except for causes of action against the Stockholders’ Representative with respect to any action or omission taken or made fraudulently or in bad faith with respect to such Stockholder. All payments, damages, costs, fees and expenses incurred by the Stockholders’ Representative pursuant to in connection with any dispute with Buyer under this Section 2.4 Agreement shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless paid by the Stockholders in proportion to their respective percentage ownership of whether or not the shares of Company Stock being sold hereunder and may be deducted by Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for from any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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 amounts otherwise payable to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3hereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Euramax International PLC)
Stockholders’ Representative. The Stockholders (a) By the execution and delivery of this Agreement, including counterparts hereof, each Stockholder hereby appoint irrevocably constitutes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and in his absence ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders such Stockholder with full power powers of substitution (and, if substituted, the Stockholders' Representative will promptly notify Parent of such substitution) to act in the name, place and stead of such Stockholder with respect to this Agreement and the Stockholders 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 surrender transfer of such Target Common Stock to the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this AgreementParent pursuant hereto, 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 to execute all such documents documents, as the Stockholders’ ' Representative shall deem necessary or appropriate in connection with this Agreement, the Escrow Agreement or any of the transactions contemplated by this Agreementhereby or thereby, including, without limitation, the power:
2.4.1 (i) to act for receive, hold, and deliver to the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including Parent the power to compromise certificates evidencing the Target Common Stock accompanied by executed stock powers and any indemnity claim other documents relating thereto on behalf of the Stockholders and to transact matters of litigationsuch Stockholder;
2.4.2 (ii) to execute and deliver the Escrow Agreement and all ancillary other agreements, certificates documents and documents that other papers which the Stockholders’ ' Representative deems necessary or appropriate in connection with this Agreement or the consummation Escrow Agreement or any of the transactions contemplated by hereby or thereby;
(iii) to receive, 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;
2.4.3 (v) to act as for such Stockholder with regard to all indemnification matters referred to in this Agreement, including, without limitation, the paying agent and power to receive funds and give receipts for funds, including in respect compromise any claim on behalf of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;such Stockholder; and
2.4.4 (vi) to do or refrain from doing any further act or deed on behalf of the Stockholders that such Stockholder which the Stockholders’ ' Representative deems necessary or appropriate in her its sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such Stockholder could do if personally present; and.
2.4.5 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, irrevocable and Parent, Federal the Parent and ATS any other person may conclusively and absolutely rely, without inquiry, upon any action actions of the Stockholders’ Representative ' Representative, as the act of the Stockholders in all matters referred to hereinin this Agreement and the Escrow Agreement. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit Each of the Stockholders hereby ratifies and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm confirms all that the its said Stockholders’ ' Representative shall do or cause to be done by virtue of her its appointment as the Stockholders’ Representative representative of the Stockholderssuch 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 the their obligations under this Agreement and the Escrow Agreement, but the Stockholders’ ' Representative shall not be responsible to the Stockholders any Stockholder for any loss or damages the Stockholders damage any Stockholder may suffer by reason of the performance by of the Stockholders’ ' Representative of her its duties under this Agreement and the Escrow Agreement or with respect to any other matter under this Agreement and the Escrow Agreement, other than 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 law by performance of its duties hereunder. Each Stockholder has delivered to the Stockholders’ ' Representative of her duties under this Agreement. The 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 and her heirs and personal otherwise deems necessary or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages arising out of or desirable in connection with the performance of her obligations 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 by the Stockholders' Representative hereunder.
(d) The Stockholders agree that the Parent may rely on the relevant provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law by Section 12.16 in dealing with the Stockholders’ ' Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution on behalf of the Stockholders’ Representative. Notwithstanding anything .
(e) The Parent may, for all purposes of this Agreement and the Escrow Agreement, assume and treat every notice, payment or other action directed to the contrary hereinStockholders' Representative as 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 Stockholder in the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3correct 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. The Stockholders (a) Stockholders’ Representative is hereby appoint ▇▇▇▇▇▇▇ irrevocably appointed to act as the true and lawful sole representative, agent and attorney-in-fact (for the “Stockholders’ Representative”) of the Rolling Stockholders with full power of substitution to act in the nameand their transferees, place successors and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions assigns for all purposes of this Agreement and the Merger Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act except 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 expressly provided herein.
(b) Stockholders’ Representative shall have the power and authority to take such actions on behalf of each Rolling Stockholder 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 delivering any and 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 transactions contemplated by sole discretion of Stockholders’ Representative and at the Rolling Stockholders’ cost, in the performance of its duties under this Agreement or the Merger Agreement, including, without limitation, the power:;
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise (v) take any indemnity claim and all actions on behalf of the Rolling Stockholders and as set forth in, or as required to transact matters give effect to the obligations of litigation;the Rolling Stockholders as set forth in, Section 5.01; and
2.4.2 to execute and deliver (vi) taking all ancillary agreements, certificates and documents that the Stockholders’ Representative deems actions necessary or appropriate in connection with the consummation judgment of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to for the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment accomplishment of the foregoing.
(c) The power of attorney granted herein appointing Stockholders’ Representative shall be deemed as attorney-in-fact is coupled with an interest and the death or incapacity of any Rolling Stockholder shall be irrevocable, not terminate or diminish the authority and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action agency of the Stockholders’ Representative. Should Stockholders’ Representative in all matters referred be unable or unwilling to herein. If ▇▇▇▇▇▇▇ resignsserve, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor a replacement Stockholders’ Representative shall be designated in writing and appointed by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die Crestview Partners III GP, L.P. (or become incapacitatedits representatives, if any trust successors or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretoassigns). The Stockholders hereby confirm all that the decisions and actions of any such replacement Stockholders’ Representative shall do or cause to be done by virtue be, for all purposes, those of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the as if originally named herein.
(d) Stockholders’ Representative shall not be responsible liable to the Rolling Stockholders for any loss act done or damages omitted as Stockholders’ Representative, except to the Stockholders may suffer by the performance by 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 her attorneys, accountants and other professionals necessary or appropriate and engaged by Stockholders’ Representative in the performance of their duties under this AgreementAgreement shall be paid directly by the Rolling Stockholders, other than loss or damage arising from willful violation in each case, pro rata in accordance with its ownership percentage of the law by the Stockholders’ Representative of her duties under this Agreement. aggregate Rollover Shares.
(e) The Rolling Stockholders shall, severally but not jointly, indemnify, defend and hold harmless Stockholders’ Representative and her heirs its heirs, representatives, successors and personal or legal representatives shall be held harmless by the Stockholders from, assigns from and indemnified against any loss or damages and all claims, demands, suits, actions, causes of action, losses, damages, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) arising out as a result of or incurred in connection with any actions taken or omitted to be taken by Stockholders’ Representative pursuant to the performance of her obligations in accordance with the provisions terms of this Agreement, except for any of to the foregoing arising out of the willful violation of the law by the extent it is finally determined that Stockholders’ Representative of her duties hereunderwas grossly negligent or engaged in willful misconduct. The foregoing indemnity shall survive the resignation or substitution of the In addition, each Rolling Stockholder forever voluntarily releases and discharges Stockholders’ Representative. Notwithstanding anything , 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 any actions taken or omitted to the contrary herein, the be taken by Stockholders’ Representative shall have no liability or obligation pursuant to any Parent Indemnified Party otherwise thanthe terms of this Agreement, and only except to the extent of, her individual liability as a Stockholder as set forth 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 to repay such amount if it shall ultimately be determined that Stockholders’ Representative is not entitled to be indemnified by the Rolling Stockholders pursuant to this Section 6.32.05(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 Written Consent, 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 Stockholders hereby 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 the true and lawful its agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders Securityholders in any litigation or arbitration involving this Agreementconnection with, act as and to facilitate the paying agent consummation of the Transactions, and in connection with the activities to be performed on behalf of the StockholdersSecurityholders under this Agreement and the other documents contemplated hereby, do or refrain from doing all 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 further acts actions and thingsto execute and deliver such amendments, modifications, waivers and execute all such consents in connection with this Agreement and the other documents contemplated hereby and the consummation of the Transactions as the Stockholders’ Representative shall Representative, in its reasonable discretion, may deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 desirable to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments effect to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter intentions of this Agreement and the Paying Agent Agreement as fully and completely as other documents contemplated hereby;
(ii) to pay expenses of the Stockholders could do if personally present; and
2.4.5 to receive service of process 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 claims amounts due to the Securityholders under this Agreement. The appointment of Agreement or under the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocableother documents contemplated hereby, and Parentto 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), Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action to use the funds constituting the Representative Expense Amount to satisfy the expenses of the Stockholders’ Representative in all matters referred performing its duties hereunder and to herein. If ▇▇▇▇▇▇▇ resignssatisfy expenses and obligations of the Securityholders; provided, dies however, that if the Representative Expense Amount is exhausted or is otherwise unable disbursed and the Stockholders’ Representative requires additional funds to serve 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, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitatedits reasonable discretion, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes deems to be in the best interest of the Stockholders 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 consistent 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 obligations Stockholders’ Representative may deem advisable or necessary; (E) settle or compromise any claims asserted under ARTICLE I or otherwise under this Agreement; (F) assume, but 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 be responsible 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 Stockholders for Securityholders, in each case on behalf of the Securityholders, in the name of the Stockholders’ Representative;
(vii) to waive or refrain from enforcing any loss right of the Securityholders or damages any of them and/or of the Stockholders 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 suffer by consider necessary or proper or convenient in connection with or to carry out the performance activities described in paragraphs (i) through (vii) above and the Transactions. 47
(c) All decisions and actions by the Stockholders’ Representative of her duties under (to the extent authorized by this Agreement, other than loss or damage arising from willful violation ) shall be binding upon all of the law by 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 her duties under this Agreement. The 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 her heirs the other documents contemplated hereby.
(e) Purchaser and personal 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 legal representatives the Surviving Company shall be held harmless by liable or accountable in any manner for any act or omission of the Stockholders fromStockholders’ Representative in such capacity.
(f) Purchaser and the Surviving Company shall be entitled to unconditionally assume that any action taken or omitted, and indemnified against or any loss document executed by, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P., purporting to act as the Stockholders’ Representative under or damages arising out of pursuant to this Agreement or the other documents contemplated hereby or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out Transactions has been unconditionally authorized by Securityholders to be 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 Action against Purchaser, Merger Sub, the Surviving Company or any of their respective Representatives alleging that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P. did not have the willful violation of the law by authority to act as the Stockholders’ Representative on behalf of her duties hereunderSecurityholders in connection with any such action, omission or execution. The foregoing indemnity No modification or revocation of the power of attorney granted by the Securityholders herein to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Capital Partners SBIC Fund, L.P. to serve as the Stockholders’ Representative shall survive be effective as against Purchaser until Purchaser has received a document signed by all Securityholders effecting said modification or revocation and selecting another representative to fill the resignation or substitution vacancy of the Stockholders’ Representative. Notwithstanding anything Purchaser, Merger Sub, the Surviving Company and their respective Representatives are hereby relieved from any liability to the contrary herein, any Person for any acts done by the Stockholders’ Representative shall have no liability and any acts done by Purchaser, Merger Sub or obligation to the Surviving Company in accordance with any Parent Indemnified Party otherwise thandecision, and only to act, consent or instruction of the extent of, her individual liability as a Stockholder as set forth in Section 6.3Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. The (a) By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders, each of the Company Stockholders hereby (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to have agreed to appoint ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the true and lawful its agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Earnout Amount in satisfaction of claims by any litigation Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Stockholder or arbitration involving by any such Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this AgreementAgreement or the transactions contemplated hereby, act as and to take all other actions that are either (i) necessary or appropriate in the paying agent on behalf judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Company Stockholders with the right to a majority of the Pro Rata Portions of the Earnout Amount; provided, do however, that the Stockholders’ Representative may not be removed unless holders of a two-thirds interest of the Earnout Amount agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or refrain from doing all such further acts and things(B) the appointment of a successor by the holders of a majority in interest of the Earnout Amount. No bond shall be required of the Stockholders’ Representative, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:not receive any compensation for its services.
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. (b) The appointment of the Stockholders’ Representative shall not be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon liable to the Company Stockholders for any action of the act done or omitted hereunder as Stockholders’ Representative while acting in all matters referred to herein. If ▇▇▇▇▇▇▇ resignsgood faith and in the exercise of reasonable judgment, dies even if such act or is otherwise unable to serve as omission constitutes negligence on the part of such Stockholders’ Representative, the successor . The Stockholders’ Representative shall be designated only have the duties expressly stated in writing this Agreement and shall have no other duty, express or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts. The Stockholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitatedsuch professionals, if any trust or estate should terminate or if any other such event should occur, and any action taken by the Stockholders’ Representative pursuant to this Section 2.4 based on such reliance shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless deemed conclusively to have been taken in good faith and in the exercise of whether or not reasonable judgment. The Company Stockholders shall indemnify the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to and hold the Stockholders’ Representative for harmless against any loss, liability or expense incurred on the benefit part of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment (so long as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth was acting in this Agreement good faith in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders connection therewith) and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this Agreement, except for any acceptance or administration of the foregoing arising out Stockholders’ Representative’s duties hereunder, including the reasonable fees and expenses of the willful violation of the law any legal counsel retained by the Stockholders’ Representative of her duties hereunder(“Stockholders’ Representative Expenses”). The foregoing indemnity Stockholders’ Representative shall survive have the resignation right to retain Stockholders’ Representative Expenses from the Representative Reimbursement Amount prior to any distribution to the Company Stockholders. A decision, act, consent or substitution instruction of the Stockholders’ Representative. Notwithstanding anything , including an amendment, extension or waiver of this Agreement pursuant to Sections 8.4 or 8.5 hereof, shall constitute a decision of the contrary hereinCompany Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
(c) The Indemnified Parties shall be entitled to rely conclusively on the instructions and decisions of the Stockholders’ Representative shall have no liability with respect to the indemnification obligations of the Company Stockholders under this Article VII, including the defense or obligation settlement of any claims or the making of payments with respect thereto, or as to any Parent Indemnified Party otherwise than, other actions required or permitted to be taken by the Stockholders’ Representative hereunder (including any amendment or waiver under Sections 8.4 and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.38.5).
Appears in 1 contract
Sources: Merger Agreement (Kyphon Inc)
Stockholders’ Representative. The Stockholders (a) Each Seller hereby appoint ▇▇▇▇▇▇▇ irrevocably appoints Stockholders’ Representative as the true and lawful agent such Seller’s representative and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in such Seller with respect to this Agreement after Closing and to take any litigation and all actions and make any decisions required 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 permitted to be taken by Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 pursuant to act for the Stockholders with regard to matters pertaining to indemnification referred to in 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) agree to, negotiate, enter into settlements and 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 indemnity claim on behalf of the Stockholders for indemnification pursuant to Section VII and to transact matters of litigationSection IX;
2.4.2 to (v) execute and deliver all ancillary agreementsdocuments 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, certificates employ or appoint any agents or representatives (including attorneys, accountants and documents that the consultants) to assist Stockholders’ Representative deems in complying with its duties and obligations; and
(viii) take all actions necessary or appropriate in connection with the consummation good faith judgment of Stockholders’ Representative for the accomplishment of the transactions contemplated by foregoing. Purchaser shall be entitled to deal exclusively with Stockholders’ Representative on all matters relating to this Agreement;
2.4.3 Agreement (including Sections VII and IX) and shall be entitled to act as the paying agent and to receive funds and give receipts for funds, including in respect rely conclusively (without further evidence of any adjustments kind whatsoever) on any document executed or purported to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed be executed on behalf of the Stockholders that the any Seller by Stockholders’ Representative deems necessary Representative, and on any other action taken or appropriate in her sole discretion relating purported to the subject matter be taken on behalf of this Agreement and the Paying Agent Agreement any Seller by Stockholders’ Representative, as being fully and completely as the Stockholders could do if personally present; and
2.4.5 binding upon such Seller. Notices or communications to receive service of process in connection with any claims under this Agreement. The appointment of the or from Stockholders’ Representative 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 deemed final, binding and conclusive upon each such Seller. 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 irrevocableterminated by any act of any one Seller, and Parentor by operation of Law, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing whether by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The (a) In order to efficiently administer (i) the distribution of the FOCUS Common Stock, (ii) the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, and (iii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify FOCUS or the Surviving Corporation pursuant to Article 8 hereof, each of the Stockholders hereby appoint irrevocably constitutes and appoints, effective as of the Effective Date, Gerard H. Langeler (the "S▇▇▇▇▇▇▇ ▇▇▇▇▇' ▇▇▇▇esentative"), as the its true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) in respect of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement and the Escrow Agreement, including, without limitation.
(b) By their approval of the Merger and their appointment of Gerard H. Langeler as the ▇▇▇▇▇▇▇▇▇▇▇▇' ▇▇presentative, the powerStockholders agree that:
2.4.1 (i) FOCUS or the Surviving Corporation shall be able to act rely conclusively on the instructions and decisions of the Stockholders' Representative as to the settlement of any indemnification claim by FOCUS or the Surviving Corporation pursuant to Article 8 hereof or any other actions required to be taken by the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against FOCUS or the Surviving Corporation for any action taken by FOCUS or the Stockholders with regard to matters pertaining to indemnification referred to Surviving Corporation in this Agreementreliance upon the instructions or decisions of the Stockholders' Representative;
(ii) all actions, including decisions and instructions of the power to compromise any indemnity claim on behalf Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and to transact matters no Stockholder shall have any cause of litigationaction against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
2.4.2 to execute (iii) the provisions of this Subsection 1.09 are independent and deliver all ancillary agreementsseverable, certificates are irrevocable and documents coupled with an interest and shall be enforceable notwithstanding any rights or remedies that the Stockholders’ Representative deems necessary or appropriate any Stockholder may have in connection with the consummation of Merger and the other transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts (iv) remedies available at law for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf breach of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter provisions of this Agreement Subsection 1.09 are inadequate; therefore, FOCUS and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative Surviving Corporation shall be deemed coupled with an interest entitled to temporary and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, permanent injunctive relief without inquiry, upon any action the necessity of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, proving damages if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative FOCUS or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required brings an action to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with enforce the provisions of this AgreementSubsection 1.09; and
(v) the provisions of this Subsection 1.09 shall be binding upon the executors, except for heirs, legal representatives and successors of each Stockholder, and any of references in this Agreement to a Stockholder or the foregoing arising out of Stockholders shall mean and include the willful violation of the law by successors to the Stockholders’ Representative of her duties ' rights hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything , whether pursuant to the contrary hereintestamentary disposition, the Stockholders’ Representative shall have no liability laws of descent and distribution or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3otherwise.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Wayn▇ ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If Wayn▇ ▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve or resigns, dies or is otherwise unable to serve as Stua▇▇ ▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders’ ' Representative, the successor Stockholders’ Representative "). The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action 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 Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, executing and delivering all agreements, certificates, receipts, instructions and 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 best interest of such Stockholder and the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) Notwithstanding the Stockholders for any loss or damages foregoing, the Stockholders may suffer by Stockholder Representative shall inform the performance by the Stockholders’ Representative other Stockholder of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders fromall notices received, and indemnified against of all actions, decisions, notices and exercises of any loss rights, power or damages arising out of authority proposed to be done, given or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law taken by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ such Stockholder 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. The (a) By the execution and delivery of this Agreement and by their act of surrendering certificates representing their Shares pursuant to this Agreement, each of the Stockholders hereby appoint irrevocably constitutes and appoints, for the period beginning on the date hereof and ending on the later of the third anniversary of this Agreement or date on which all indemnity claims under Article V hereof are finally settled, ▇▇. ▇▇▇▇▇▇▇ as the , his or her true and lawful agent and attorney-in-fact (the “Stockholders’ "Representative”) of the Stockholders "), with full power of substitution substitution, subject to the terms of the Representative Agreement dated of even date herewith among the Stockholders and the Representative and attached hereto as EXHIBIT 1.06(A), to act in the his name, place and stead of the Stockholders ▇▇▇▇▇ with respect to the surrender of the stock certificates owned all transactions contemplated by the Stockholders to Federal in accordance with the and all terms and provisions of this Agreement, and to act on his behalf of the Stockholders in any dispute, litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, 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, including, without limitation, the power:
2.4.1 (i) to waive any condition to the obligations of the Stockholders to consummate the transactions contemplated by this Agreement, PROVIDED, HOWEVER, that if the waiver of any condition could have a Material Adverse Effect (as defined in Section 3.01) on the Stockholders, such waiver must be approved by a majority in interest of the Stockholders;
(ii) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this AgreementAgreement and adjustments pursuant to Section 1.03, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigationStockholders;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (iii) to do or refrain from doing any further act or deed on behalf of the Stockholders that which the Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement Agreement, as fully and completely as the Stockholders each Stockholder could do if personally present; and
2.4.5 (iv) to deliver all ancillary agreements, certificates and documents and to receive all notices and service of process on behalf of the Stockholders in connection with any claims or matters under this AgreementAgreement (and the Representative agrees to deliver copies of all such notices and service of process to the Stockholders).
(b) If ▇▇. ▇▇▇▇▇ dies or otherwise becomes incapacitated and unable to serve as Representative, or is unwilling to serve as Representative, then a new Representative shall be selected by the affirmative vote of a majority in interest of the Stockholders to serve as the new Representative. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal Natrol and ATS Prolab 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. If ▇▇▇▇▇▇▇ resigns, dies All notices delivered by Natrol or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior Prolab to the Closing. If any individual Stockholders should die Representative (whether pursuant hereto or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative otherwise) for the benefit of the Stockholders and shall discharge in full all constitute notice requirements of Parent, Federal by Natrol or the Surviving Corporation Prolab 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 her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the his obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by reason of the performance by the Stockholders’ Representative of her his duties under this Agreement, other than loss or damage arising from willful violation of the law by or gross negligence in the Stockholders’ Representative performance of her his duties under this Agreement. The Stockholders’ Stockholders agree to indemnify and hold harmless the Representative from and her heirs against any and personal all expenses (including attorneys' fees), judgments fines or legal representatives other damages incurred by him in connection with, arising from or relating to the performance of his duties as Representative hereunder, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Stockholders and, with respect to any criminal action or proceeding, had no reasonable belief his conduct was unlawful. Natrol and Prolab agree that the Stockholders may so indemnify the Representative.
(c) All actions, decisions and instructions of the Representative taken, made or given pursuant to the authority granted to the Representative pursuant to paragraph (a) above shall be held harmless conclusive and binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Natrol and Prolab hereby acknowledge that the Representative may with respect to any particular action, decision or instruction solicit the consent of the Stockholders before acting.
(d) The provisions of this Section 1.06 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolutions, granted by the Stockholders fromto the Representative and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Stockholder.
(e) Natrol and Prolab shall be entitled to rely conclusively on the instructions and decisions of the Representative as to any actions required or permitted to be taken by the Stockholders or the Representative hereunder, and indemnified no party hereunder shall have any cause of action against any loss or damages arising out of or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except Natrol and Prolab for any action taken by Natrol or Prolab in reliance upon the instructions or decisions of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Roy ▇. ▇▇▇▇▇▇ as ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Stockholder, with full power of substitution in his or her name and on his or her behalf to act according to the terms of this Agreement in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf absolute discretion of the Stockholders, do or refrain from doing all such further acts and things' Representative, and execute in general to do all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, things and to perform all acts including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders executing and to transact matters of litigation;
2.4.2 to execute and deliver delivering all ancillary agreements, certificates certificates, receipts, instructions and documents that the Stockholders’ Representative deems necessary other instruments contemplated by or appropriate deemed advisable in connection with the consummation Article 12 of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and the other Stockholders hereunder and in consideration of the Stockholders’ Representative shall be deemed coupled with an interest mutual covenants and agreements made herein, and shall be irrevocableirrevocable 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 Stockholders' Representative shall inform each Stockholder of all notices received, and Parentof all actions, Federal decisions, notices and ATS may conclusively and absolutely relyexercises of any rights, without inquirypower or authority proposed to be done, upon any action of the given or taken by such 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 and shall be designated in writing act as directed by the Stockholders who held holding a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement interest in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability Indemnity Escrow Property (as a Stockholder as set forth defined in Section 6.34.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. The (a) In order 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 appoint ▇▇▇▇▇▇▇ designates Hisanori Aoyama as the true and lawful agent and attorney-in-fact 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 Stockholders amount of any Adjustment, (ii) to take all action necessary in connection with full power the waiver of substitution any condition to act in the name, place and stead obligations of the Stockholders with respect Stockholder to consummate the transactions contemplated hereby, (iii) to make all decisions relating to the surrender 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 additional action as is contemplated, permitted or required by the terms of this Agreement or the Escrow Agreement to be taken by or on behalf of the stock certificates owned by Stockholder.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Majority Stockholders to Federal (or their respective successors, heirs or executors) shall, in accordance with the terms 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 provisions 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, and the Stockholder agrees to act on behalf all of the Stockholders in any litigation or arbitration involving this Agreement, act as following matters:
(i) the paying agent Buyer and its affiliates shall be able to rely conclusively on behalf the instructions and decisions of the Stockholders, do or refrain from doing all such further acts and things' Representative as to any of the matters described in this Section 1.6, and execute all such documents as 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) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement or the Escrow Agreement;
(iii) the provisions of this Section 1.6 are independent and severable, are irrevocable and coupled with an interest and shall be 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, includingheirs, without limitationlegal representatives and successors of the Stockholder, and any references in this Agreement to the Stockholder shall include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the power:laws of descent and distribution or otherwise; and
2.4.1 (vi) the Stockholders' Representative shall have the authority to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim execute and deliver on behalf of the Stockholders Stockholder the Escrow Agreement and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary any other agreements, certificates and documents that the Stockholders’ Representative deems instruments contemplated by this Agreement or necessary or appropriate in connection with to facilitate the consummation Closing.
(f) All fees of the transactions contemplated and expenses incurred by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ ' Representative shall be deemed coupled with an interest and shall be irrevocablepaid by the Selling Stockholders, and Parentthe Stockholder shall pay the amount of such fees and expenses reasonably allocated to him, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies her or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken it by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. The Stockholders Sellers (by virtue of their execution of this Agreement) hereby irrevocably constitute and appoint ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as the agent and true and lawful agent and attorney-in-attorney in fact of the Sellers (the “Stockholders’ Representative”) of the Stockholders with full power of substitution ), to act in the name, place and stead of the Stockholders with respect to the surrender Sellers for purposes of the stock certificates owned by the Stockholders to Federal in accordance with the terms executing any documents and provisions of this Agreement, and to act on behalf of the Stockholders in taking 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 actions that the Stockholders’ Representative shall deem necessary may, in his their discretion, determine to be necessary, desirable or appropriate in connection with all matters relating to the transactions contemplated 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 this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim majority vote on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that matters. All expenses incurred by the Stockholders’ Representative deems necessary or appropriate in connection with the consummation performance of the transactions contemplated by this Agreement;
2.4.3 to act his duties as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to shall paid exclusively from the subject matter of this Agreement Second Payment, Third Payment, and the Paying Agent Agreement as fully Final Payment, and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest entitled to recover any out-of-pocket costs and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of expenses reasonably incurred by the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action connection with actions taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacityAgreement (including the hiring of legal counsel and the incurring of legal fees and costs) from the Second Payment, termination or other event had not occurredThird Payment, regardless of whether or not and Final Payment (and the Stockholders’ Representative or is authorized to direct Purchaser to make such payments from the Surviving Corporation shall have received notice of such deathSecond Payment, incapacityThird Payment, termination or other eventand Final Payment). All notices required parties to be made or delivered by Parent, Federal or ATS this Agreement acknowledge that the Stockholders’ Representative is permitted to the Stockholders shall be made engage ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as counsel to the Stockholders’ Representative for the benefit and waives any conflict of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all interest that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability arise as a Stockholder as set forth in Section 6.3result of such engagement.
Appears in 1 contract
Stockholders’ Representative. (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 designates Jame▇ ▇. ▇▇▇▇▇▇ ▇▇ its representative (the "Stockholder's Representative").
(b) The Stockholders Stockholder hereby appoint 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▇▇▇▇▇▇▇ as ▇▇▇▇▇ ▇▇▇ll fill such vacancy and shall be deemed to be the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) Stockholder's Representative for all purposes of the Stockholders with full power of substitution to act this Agreement; however, no change in the name, place and stead Stockholder's Representative shall be effective until Buyer is given notice of the Stockholders with respect to the surrender of the stock certificates owned it by the Stockholders Stockholder.
(d) All decisions and actions by the Stockholder's Representative shall be binding upon the Stockholder, and the Stockholder shall have no right to Federal in accordance with object, dissent, protest or otherwise contest the terms and provisions same.
(e) By execution of this Agreement, the Stockholder agrees that:
(i) Buyer shall be able to rely conclusively on the instructions and to act on behalf decisions of the Stockholders Stockholder's Representative as to any actions required or permitted to be taken by 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) all actions, decisions and instructions of the Stockholder's Representative shall be conclusive and binding upon the Stockholder and the Stockholder shall not have any litigation cause of action against the Stockholder's Representative for any action taken, decision made or arbitration involving instruction given by the Stockholder's Representative under this Agreement, act as the paying agent on behalf of the Stockholders, do except for fraud or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter willful breach of this Agreement by the Stockholder's Representative;
(iii) remedies available at law for any breach of the provisions of this Section 1.5 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the Paying Agent Agreement as fully and completely as necessity of proving damages if Buyer brings an action to enforce the Stockholders could do if personally presentprovisions of this Section 1.5; and
2.4.5 to receive service (iv) the provisions of process in connection with any claims under this Agreement. The appointment Section 1.5 are independent and severable, shall constitute an irrevocable power of the Stockholders’ Representative shall be deemed attorney, coupled with an interest and surviving death, granted by the Stockholder to the Stockholder's Representative and shall be irrevocablebinding upon the executors, heirs, legal representatives and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action successors of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as Stockholder.
(f) All fees and expenses incurred by the Stockholders’ Representative, the successor Stockholders’ Stockholder's Representative shall be designated in writing paid by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3Stockholder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Marketing Specialists Corp)
Stockholders’ Representative. The Stockholders hereby appoint (a) Upon the Effective Time and without further act of any Stockholder, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "Stockholders' Representative") shall be appointed as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) for each Stockholder, for and on behalf of the Stockholders each such Stockholder, with full power of substitution substitution, and with full power and authority to act in the name, place and stead of represent the Stockholders and their successors with respect to all matters arising under this Agreement, and all actions taken by the surrender Stockholders' Representative hereunder shall be binding upon such Stockholders and their successors as if expressly ratified and confirmed in writing by each of them. Without limiting the generality of the stock certificates owned by foregoing, the Stockholders' Representative shall have full power and authority, on behalf of all the Stockholders and their successors, to Federal in accordance with 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 to act on behalf of the Stockholders in compromise any litigation or arbitration involving dispute which may arise under this Agreement, act as the paying agent on behalf 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. All determinations of the Stockholders' Representative shall be decided by a majority thereof in the event there is more than one Stockholders' Representative.
(b) The Stockholders' Representative, do or refrain any successor hereafter appointed, may resign and shall be discharged of his duties hereunder upon the appointment of a successor Stockholders' Representative as hereinafter provided. In case of such resignation, or in the event of the death or inability to act of the Representative, a successor shall be named from doing among the Stockholders by a majority of the members of the Board of Directors of who served on such board prior to the Merger. Each such successor Stockholders' Representative shall have all such further acts the power, authority, rights and thingsprivileges hereby conferred upon the original Stockholders' Representative, and execute all the term "Stockholders' Representative" as used herein shall be deemed to include such documents as the successor Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by ' Representative.
(c) In performing any of their duties under this Agreement, including, without limitationor upon the claimed failure to perform his duties hereunder, the power:
2.4.1 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 Stockholders' Representative shall not incur any such liability with regard respect to matters pertaining (i) any action taken or omitted to indemnification referred be taken in good faith upon advice of his counsel given with respect to any questions relating to the duties and responsibilities of the Stockholders' Representative hereunder; or (ii) any action taken or omitted to be taken in reliance upon any document, including any written notice or instructions provided for in this Agreement, including the power not only as to compromise any indemnity claim on behalf of the Stockholders its due execution and to transact matters the validity and effectiveness of litigation;
2.4.2 its provisions, but also as to execute the truth and deliver all ancillary agreementsaccuracy of any information contained therein, certificates and documents that which the Stockholders’ ' Representative deems necessary shall in good faith believe to be genuine, to have been signed or appropriate in connection presented by the purported proper person or persons and to conform with the consummation provisions of the transactions contemplated by this Agreement;
2.4.3 to act as . The limitation of liability provisions of this Section shall survive the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter termination of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment resignation of the Stockholders’ ' Representative. The Compec Stockholders shall severally indemnify the Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocablehold him harmless against any loss, and Parentliability or expense (including any expenses of legal counsel retained by the Stockholders' Representative) incurred without willful default, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action gross negligence or bad faith on the part of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ ' Representative and her 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 acceptance or administration of her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Warr▇▇ ▇. ▇▇▇▇▇ (▇▇, in the event that Warr▇▇ ▇. ▇▇▇▇▇ ▇▇ unable or unwilling to serve, Stua▇▇ ▇▇▇▇▇▇▇) ▇▇ as be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Stockholder, with full power of substitution to act in the his or her name, place and stead of the Stockholders with respect stea▇ ▇▇▇ on his or her behalf to act according to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of Agreement in the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf absolute discretion of the Stockholders, do or refrain from doing all such further acts and things' Representative, and execute in general to do all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, things and to perform all acts including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders executing and to transact matters of litigation;
2.4.2 to execute and deliver delivering all ancillary agreements, certificates certificates, receipts, instructions and documents that the Stockholders’ Representative deems necessary other instruments contemplated by or appropriate deemed advisable in connection with the consummation Article 12 of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of such Stockholder and the other Stockholders hereunder and in consideration of the Stockholders’ Representative shall be deemed coupled with an interest mutual covenants and agreements made herein, and shall be irrevocable, irrevocable and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for terminated by any loss act of any Stockholder or damages the Stockholders may suffer by the performance operation of law, whether by the Stockholders’ Representative of her duties under this Agreement, such Stockholder's death or any other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Unicapital Corp)
Stockholders’ Representative. Section 5.1 Stockholders Representative.
(a) The Stockholders Representative is hereby appoint ▇▇▇▇▇▇▇ appointed, authorized and empowered to act as the true representative of the Company Stockholders for all purposes hereunder and lawful for the benefit of the Company Stockholders, as the exclusive agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of each of the Company Stockholders, in connection with and to facilitate the consummation of the Acquisition, which shall include the power, authority and 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 litigation or arbitration involving manner relating to this Agreement, act as and each other agreement, document, instrument or certificate referred to herein or therein or the paying agent transactions provided for herein or therein, including the Ancillary Agreements, 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 Company Stockholders, do 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 doing all such further acts and thingsenforcing any right of the Company Stockholders or the Stockholders Representative arising out of or under or in any manner relating to this Agreement, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate any other agreement, instrument or document in connection with the transactions contemplated by this Agreementforegoing; provided, includinghowever, without limitation, the power:
2.4.1 that no such failure to act for on the part of the Stockholders with regard to matters pertaining to indemnification referred to Representative, except as otherwise provided in this Agreement, including shall be deemed a waiver of any such right or interest by the power 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 compromise 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 indemnity claim 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 implement the Merger, and all other agreements, documents or instruments referred to herein or therein or executed in connection herewith and therewith; and
(vi) to 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 behalf the part of the Stockholders Representative) to conclusively rely on the opinions and to transact matters advice of litigation;such Persons.
2.4.2 to execute (b) This Article 5 and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent indemnities, immunities and to receive funds and give receipts for funds, including in respect of any adjustments powers granted to the Purchase Price, Stockholders Representative hereunder and to do under this Agreement shall survive the Closing Date or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter termination of this Agreement in accordance with its terms.
(c) Except as provided for herein, Purchaser, Subco and Mergeco shall have the Paying Agent Agreement as fully and completely as right to rely upon all actions taken or omitted to be taken by the Stockholders could do if personally present; and
2.4.5 Representative pursuant to receive service this Agreement and any Ancillary Agreement, as applicable, all of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative which actions or omissions shall be deemed legally binding upon the Company Stockholders.
(d) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Company Stockholder, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action (ii) shall survive the consummation of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as Merger.
(e) Upon the Stockholders’ Representativewritten request of any Company Stockholder, the successor Stockholders’ Stockholders Representative shall be designated in writing provide such Person with an accounting of all monies or proceeds (including the Payment Shares and Earn-Out Shares) received and distributed by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitatedRepresentative, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be in its capacity as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders Representative, and shall be made to the Stockholders’ Representative for the benefit of provide such Person with such other reasonable information regarding the Stockholders Representative’s actions and shall discharge its other costs and expenses, in full all notice requirements of Parent, Federal or the Surviving Corporation to its capacity as the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment Representative, as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders such Person may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3reasonably request.
Appears in 1 contract
Sources: Merger Agreement
Stockholders’ Representative. The (a) Pursuant to the Stockholders hereby appoint ▇▇▇▇▇▇▇ Approval dated on or about the date hereof, the Letters of Transmittal and Option Cancelation Agreements, as applicable, the Equityholders have constituted, appointed and empowered effective from and after the date of such consent, Olympus Growth Fund V, L.P. as the true Stockholders’ Representative, for the benefit of the Equityholders and lawful the exclusive agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of each Equityholder, in connection with and to facilitate the Stockholders consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the 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 litigation 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 arbitration involving appropriate under this Agreement, act as the paying agent 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, do or refrain from doing all such further acts and things’ Representative and/or any of the Equityholders, and execute receive process on behalf of any or all Equityholders in any such documents 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 appropriate proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim accountants and other advisors and incur such other expenses on behalf of the Stockholders Equityholders in connection with any matter arising under this Agreement; and (vi) to transact matters collect, hold and disburse the Purchase Price Adjustment Holdback Amount and the Expense Holdback Amount in accordance with the terms of litigation;this Agreement.
2.4.2 (b) The Stockholders’ Representative shall be entitled to execute receive reimbursement from, and deliver 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 ancillary agreements, certificates and documents that or any of the powers conferred upon the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for fundshereunder, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that (i) the Stockholders’ Representative deems necessary shall incur no responsibility whatsoever to any Equityholders by reason of any act or appropriate in her sole discretion relating omission performed or omitted hereunder, excepting only responsibility for any act or failure to the subject matter of this Agreement act which represents willful misconduct, and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of (ii) the Stockholders’ Representative shall be deemed 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 8.15(b).
(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) Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the Stockholders’ Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon the Equityholders. Parent’s obligation to make any payment to or for the benefit of any Equityholder under or in connection with this Agreement is to make such payment as the Stockholders’ Representative directs, as described in this Agreement, and Parent and the Surviving Corporation shall have the right to rely upon, without any liability for any errors or omissions, any instruction provided by the Stockholders’ Representative with respect to any such payments.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and (ii) shall survive the consummation of the Merger, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 2.4 Agreement shall be as valid as if effective and binding on each Equityholder notwithstanding any contrary action of or direction from such death Equityholder, except for actions or incapacity, termination or other event had not occurred, regardless omissions of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit constituting willful misconduct.
(f) Each of the Stockholders Company, Merger Sub and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all Parent acknowledges and agrees that the Stockholders’ Representative shall do or cause is a party to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes solely to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 perform certain administrative functions in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any consummation of the foregoing arising out transactions contemplated hereby. Accordingly, each of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary hereinCompany, Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise thanto, and only shall not be liable for any losses of, any of the Company, Merger Sub 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, except to the extent of, her individual liability as a Stockholder as set forth such losses shall be proven to be the direct result of willful misconduct by the Stockholders’ Representative in Section 6.3connection with the performance of its obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (Jarden Corp)
Stockholders’ Representative. (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 nominate, constitute and appoint ▇▇▇▇▇▇▇ Insight as the agent and true and lawful agent and attorney-in-fact of the Non-Dissenting Stockholders (the “Stockholders’ Representative”) of the Stockholders ), with full power of substitution substitution, to act in the name, place and stead of the Non-Dissenting Stockholders with respect for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in its sole discretion, determine to the surrender of the stock certificates owned by the Stockholders be necessary, desirable or appropriate in all matters relating to Federal in accordance with the terms and provisions 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 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) grant to act the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (in the name of any litigation or arbitration involving this Agreement, act as the paying agent on behalf all of the Stockholders, do Non-Dissenting Stockholders or refrain from doing otherwise) any and all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary may, in its sole discretion, determine to be necessary, desirable or appropriate 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 the consummation of the transactions contemplated by this Agreement;
2.4.3 Contemplated Transactions, each Indemnitee shall be entitled to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that deal exclusively with the Stockholders’ Representative deems necessary or appropriate in her sole discretion on all matters relating to Section 10 and the subject matter Escrow Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Non-Dissenting Stockholder by the Stockholders’ Representative, and on any other action taken or purported to be taken on behalf of any Non-Dissenting Stockholder by the Stockholders’ 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 Paying Agent Agreement as fully powers conferred upon the Stockholders’ Representative under this Agreement, (i) the Stockholders’ Representative shall not assume any, and completely as the Stockholders could do if personally present; and
2.4.5 shall incur no, responsibility to receive service any Key Stockholder or other Non-Dissenting Stockholder by reason of process any error in judgment or other act or failure to act in connection with any claims under this Agreement. The appointment of , except for any act or failure to act which represents gross negligence or willful misconduct, and (ii) the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocableentitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action error in judgment or other act or failure to act on the part of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 such advice shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not subject the Stockholders’ Representative or to liability to any Non-Dissenting Stockholder. The Key Stockholders and 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 ATS to the Non-Dissenting Stockholders shall be made to jointly and severally indemnify the Stockholders’ Representative for the benefit and hold it harmless against and from any loss, liability or expense (including attorneys’ fees reasonably incurred as a result of the Stockholders and shall discharge in full all notice requirements performance 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 her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her its duties under this Agreement) incurred without gross negligence, other than loss willful misconduct or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative bad faith on its part and her 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 acceptance or administration of her 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 of her its duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders.
(e) Upon 30 days’ Representative. Notwithstanding anything prior written notice to the contrary hereinParent, the Stockholders’ Representative shall have no liability the right to resign in its sole discretion for any reason. If the Stockholders’ Representative shall resign or obligation 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 Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3.Escrow Agent
Appears in 1 contract
Stockholders’ Representative. 6.01 The Stockholders Stockholders, and each of them, hereby appoint ▇▇▇▇▇▇▇ the Stockholders' Representative as the true their agent to (i) represent, act for and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreementon behalf of, and to act on behalf bind each of the Stockholders in any litigation the performance of all of their obligations arising from or arbitration involving relating to this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Escrow Agreement, including, without limitationlimitation (a) the execution and delivery of any document, certificate or agreement required under this Escrow Agreement to be delivered by the power:
2.4.1 Stockholders; (b) the negotiation and settlement of claims of IWI in respect of the Escrowed Property and the making of any objection to act for such claims; and (c) the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf representation of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary at any arbitration or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including litigation in respect of any adjustments to the Purchase Price, foregoing; (ii) give and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement receive notices and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process under or pursuant to this Escrow Agreement; and (iii) to represent, act for, and bind each of the Stockholders in connection with any claims under the performance of all of their obligations arising from or related to this Escrow Agreement. The appointment of Stockholders' Representative hereby accepts such appointment.
6.02 In the event that the Stockholders’ ' Representative shall resign or otherwise be unable to fulfill its duties hereunder, a successor Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing selected by the Stockholders who held entitled to a majority of the ATS Common Stock immediately prior to the ClosingEscrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occurreason, any action taken such Stockholders' Representative may be so removed or replaced by the Stockholders’ Representative pursuant Stockholders entitled to this Section 2.4 shall be as valid as if receive a majority of such death Escrowed Property. Any decision, act, consent or incapacity, termination or other event had not occurred, regardless instruction of whether or not the Stockholders’ ' Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit constitute a decision of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that be conclusive and binding upon the Stockholders’ Representative shall do , and IWI and the Escrow Agent may rely upon any such decision, act, consent or cause to be done by virtue of her appointment as the Stockholders’ Representative instruction of the Stockholders. The Stockholders’ ' Representative shall act for as being the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreementdecision, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss act, consent or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution instruction 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Acquisition Agreement (Origin Investment Group Inc)
Stockholders’ Representative. The Stockholders hereby appoint (a) By virtue of the adoption of this Agreement by the Company’s stockholders, and without further action of any such stockholder, each stockholder shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by execution of this Agreement such Person hereby accepts such appointment) to act as the true Stockholders Representative under this Agreement in accordance with the terms of this Section 8.1 and lawful (ii) the Stockholders Representative as agent and attorney-in-fact (the “Stockholders’ Representative”) for and on behalf of the Stockholders stockholders of the Company (in their capacity as such), with full power of substitution substitution, to act in the name, place and stead of the Stockholders each stockholder with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, Section 2.4 and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for fundshereby, including 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 Section 2.4 (it being understood that the stockholders shall have no right to pursue any claim on behalf of any Indemnified Parties in respect of any adjustments the rights granted to the Purchase Price, Indemnified Parties under Section 5.10) and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed accept on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive each stockholder service of process in connection with and any claims under this Agreementnotices required to be served on the stockholders. The appointment of the Stockholders’ Representative All such actions shall be deemed to be facts ascertainable outside the Agreement and shall be binding on the stockholders as a matter of contract Law. The power of attorney granted in this Section 8.1 is coupled with an interest and is irrevocable, may be delegated by the Stockholders Representative and shall survive the death or incapacity of each stockholder. Such agency may be changed by the holders of a majority in interest of the Shares as of Closing. For the avoidance of doubt, any compromise or settlement of any matter by the Stockholders Representative hereunder shall be irrevocablebinding on, and Parentfully enforceable against, Federal all stockholders. No bond shall be required of the Stockholders Representative, and ATS the Stockholders Representative shall receive no compensation for his services. The Stockholders Representative may conclusively designate another Person, upon whose instruction Parent and absolutely the Surviving Company shall be entitled to rely, without any investigation or inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action having been taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not taken upon the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit authority of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. Representative.
(b) The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable to any stockholder for any act of the Stockholders for any loss or damages Representative taken in good faith and in the Stockholders may suffer by the performance by the Stockholders’ Representative exercise of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative his reasonable judgment and her 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 acceptance or administration of her obligations his duties under this Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent of any losses actually incurred by such Person as a proximate result of the gross negligence or bad faith of the Stockholders Representative. By virtue of the adoption of this Agreement by the Company’s stockholders, and without further action of any stockholder, each stockholder shall be deemed to hereby (i) agree that the Stockholders Representative shall not be liable for, and may seek indemnification from the stockholders for, any damages incurred by the Stockholders Representative (or any member thereof) while acting in good faith and in the exercise of his reasonable judgment and arising out of or in connection with the acceptance or administration of his duties under this Agreement, and (ii) release the Stockholders Representative from any liability for any action taken or not taken by the Stockholders Representative in his capacity as such under or in connection with this Agreement, in each such case except to the extent that any such damages are the proximate result of the gross negligence or bad faith of the Stockholders Representative.
(c) From and after the Effective Time, a decision, act, consent or instruction of the Stockholders Representative with respect to Section 2.4 shall constitute a decision of all stockholders and shall be final, binding and conclusive upon each stockholder, and Parent may conclusively rely upon any decision, act, consent or instruction of the Stockholders Representative as being the decision, act, consent or instruction of each stockholder. Parent is hereby relieved from any liability to the Stockholders Representative or any stockholder for any acts done by Parent in accordance with any such decision, act, consent or instruction of the provisions Stockholders Representative. The Stockholders acknowledge that Stockholders Representative shall not have any obligations to the stockholders to expend or risk his own funds or otherwise incur any financial liability in the exercise or performance of any of his powers, rights, duties or privileges or pursuant to this Agreement, or the transactions contemplated hereby or thereby. Furthermore, the Stockholders Representative shall not have any obligations to the stockholders to take any action unless the Stockholders Representative has been provided with funds, security or indemnities which, in his 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 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 his 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) the Stockholders Representative may disclose such nonpublic information to his legal counsel and other advisors under an obligation of confidentiality and non-use in its capacity as such (for the purpose of advising the stockholders 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 in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) any information disclosed to the Stockholders Representative pursuant to this Agreement and (iii) the Stockholders Representative may disclose to any stockholder or Parent any information disclosed to the Stockholders Representative, on a need-to-know basis; provided, that such stockholder or Parent, as applicable, (A) agrees to observe the terms of this Section 8.1(d) with respect to such information or (B) is bound by an obligation of confidentiality to the Stockholders Representative of at least as high a standard as those imposed on the Stockholders Representative under this Section 8.1(d); provided, however, that Parent may in good faith designate any information provided to the Stockholders Representative to be sensitive and proprietary as to Parent, the Surviving Company, or any of the foregoing arising out of the willful violation of the law their Affiliates, in which case such information may not be disclosed by the Stockholders’ Stockholders Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary hereinstockholders; provided, further, that with respect to any such sensitive and proprietary information, Parent and the Stockholders’ Stockholders Representative shall have no liability work together in good faith to prepare a summary or obligation to any Parent Indemnified Party otherwise than, and only abstract of such information that may be disclosed by the Stockholders Representative to the extent of, her individual liability as a Stockholder as set forth in Section 6.3stockholders.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders Indemnitors hereby irrevocably appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the true and lawful their agent and attorney-in-fact for purposes of Section 9 (the “Stockholders’ Representative”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative. After the Closing, Parent shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Section 9, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned on any document executed or purported by the Stockholders Stockholders’ Representative to Federal in accordance with the terms and provisions of this Agreement, and to act be executed on behalf of any Indemnitor by the Stockholders in Stockholders’ Representative, and on any litigation other action taken or arbitration involving this Agreement, act as purported by the paying agent Stockholders’ Representative to be taken on behalf of any Indemnitor by the Stockholders’ Representative, do or refrain from doing all as fully binding upon such further acts and things, and execute all such documents as Indemnitor. If the Stockholders’ Representative shall deem necessary die, become disabled or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 otherwise be unable to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf fulfill his responsibilities as agent of the Stockholders Indemnitors, then the Indemnitors shall, within ten (10) days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Stockholders’ Representative” for purposes of Section 9 and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the this Section 10.1. If for any reason there is no Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 at any time, all references herein to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed to refer to the Indemnitors.
(b) By virtue of the approval of the adoption of this Agreement, the Indemnitors grant to the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Indemnitors (in the name of any or all of the Indemnitors or otherwise) any and all documents and take any actions that the Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate, and, in the case of any document, in such forms and containing such provisions as the Stockholders’ Representative may, in his sole discretion, determine to be appropriate, in performing his duties as contemplated by Sections 1.11, 9 or 10.1(a).
(c) The Indemnitors recognize and intend that the power of attorney granted in Section 10.1(a): (i) is coupled with an interest and is irrevocable; (ii) may be delegated by the Stockholders’ Representative; and (iii) shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action survive the death or incapacity of each of the Indemnitors.
(d) If the Stockholders’ Representative in all matters referred shall die, become disabled or otherwise be unable or unwilling to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representativefulfill his responsibilities hereunder, the successor Stockholders’ Representative shall be designated in writing Indemnitors shall, by consent of the Company Stockholders who that held at least a majority of the ATS Common shares of Company Capital Stock (on an as-converted basis) immediately prior to the Closing. If any individual Stockholders should die or become incapacitatedEffective Time, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if within ten (10) days after such death or incapacitydisability, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received a notice of such deathresignation or withdrawal, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made appoint a successor to the Stockholders’ Representative for the benefit and immediately thereafter notify Parent of the Stockholders and identity of such successor. Any such successor 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 succeed the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of hereunder.
(e) In performing the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth functions specified 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, but the Stockholders’ Representative shall not be responsible liable to any Indemnitors in the absence of gross negligence or willful misconduct on the part of the Stockholders’ Representative (and any act done or omitted pursuant to the Stockholders for advice of counsel shall be conclusive evidence of the absence of gross negligence or willful misconduct). By virtue of the approval of the adoption of this Agreement, each Indemnitor agrees to indemnify and hold harmless the Stockholders’ Representative against any loss and all liabilities, losses, damages, claims, costs or damages the Stockholders may suffer by the performance expenses incurred by the Stockholders’ Representative of her in carrying out his duties under this Agreement and under the Escrow Agreement, including any and all out-of-pocket costs and expenses and legal fees and other than loss or damage arising from willful violation of legal costs reasonably incurred by the law Stockholders’ Representative. If not paid directly to the Stockholders’ Representative by the Indemnitors, such liabilities, losses, damages, claims, costs and expenses may be recovered by the Stockholders’ Representative from the Escrow Amount otherwise distributable to the Indemnitors following the Escrow Termination Date pursuant to the terms of her duties under this the Escrow Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by , at the Stockholders fromtime of distribution, and indemnified against such recovery will be made from the Indemnitors according to their respective pro rata interests in the Escrow Fund. Parent shall have no responsibility for the payment of such costs or expenses and shall not be responsible for collecting any loss or damages arising out of or in connection with the performance of her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of amounts payable to 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
Stockholders’ Representative. The Stockholders hereby appoint (a) By virtue of the adoption of this Agreement by the Company’s stockholders, and without further action of any such stockholder, each stockholder shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by execution of this Agreement such Person hereby accepts such appointment) to act as the true Stockholders Representative under this Agreement in accordance with the terms of this Section 8.1 and lawful (ii) the Stockholders Representative as agent and attorney-in-fact (the “Stockholders’ Representative”) for and on behalf of the Stockholders stockholders of the Company (in their capacity as such), with full power of substitution substitution, to act in the name, place and stead of the Stockholders each stockholder with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, Section 2.4 and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with facilitate the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for fundshereby, including 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 Section 2.4 (it being understood that the stockholders shall have no right to pursue any claim on behalf of any Indemnified Parties in respect of any adjustments the rights granted to the Purchase Price, Indemnified Parties under Section 5.10) and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed accept on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive each stockholder service of process in connection with and any claims under this Agreementnotices required to be served on the stockholders. The appointment of the Stockholders’ Representative All such actions shall be deemed to be facts ascertainable outside the Agreement and shall be binding on the stockholders as a matter of contract Law. The power of attorney granted in this Section 8.1 is coupled with an interest and is irrevocable, may be delegated by the Stockholders Representative and shall survive the death or incapacity of each stockholder. Such agency may be changed by the holders of a majority in interest of the Shares as of Closing. For the avoidance of doubt, any compromise or settlement of any matter by the Stockholders Representative hereunder shall be irrevocablebinding on, and Parentfully enforceable against, Federal all stockholders. No bond shall be required of the Stockholders Representative, and ATS the 64 Stockholders Representative shall receive no compensation for his services. The Stockholders Representative may conclusively designate another Person, upon whose instruction Parent and absolutely the Surviving Company shall be entitled to rely, without any investigation or inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action having been taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not taken upon the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit authority of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. Representative.
(b) The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable to any stockholder for any act of the Stockholders for any loss or damages Representative taken in good faith and in the Stockholders may suffer by the performance by the Stockholders’ Representative exercise of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative his reasonable judgment and her 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 acceptance or administration of her obligations his duties under this Agreement (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of such good faith and reasonable judgment), except to the extent of any losses actually incurred by such Person as a proximate result of the gross negligence or bad faith of the Stockholders Representative. By virtue of the adoption of this Agreement by the Company’s stockholders, and without further action of any stockholder, each stockholder shall be deemed to hereby (i) agree that the Stockholders Representative shall not be liable for, and may seek indemnification from the stockholders for, any damages incurred by the Stockholders Representative (or any member thereof) while acting in good faith and in the exercise of his reasonable judgment and arising out of or in connection with the acceptance or administration of his duties under this Agreement, and (ii) release the Stockholders Representative from any liability for any action taken or not taken by the Stockholders Representative in his capacity as such under or in connection with this Agreement, in each such case except to the extent that any such damages are the proximate result of the gross negligence or bad faith of the Stockholders Representative.
(c) From and after the Effective Time, a decision, act, consent or instruction of the Stockholders Representative with respect to Section 2.4 shall constitute a decision of all stockholders and shall be final, binding and conclusive upon each stockholder, and Parent may conclusively rely upon any decision, act, consent or instruction of the Stockholders Representative as being the decision, act, consent or instruction of each stockholder. Parent is hereby relieved from any liability to the Stockholders Representative or any stockholder for any acts done by Parent in accordance with any such decision, act, consent or instruction of the provisions Stockholders Representative. The Stockholders acknowledge that Stockholders Representative shall not have any obligations to the stockholders to expend or risk his own funds or otherwise incur any financial liability in the exercise or performance of any of his powers, rights, duties or privileges or pursuant to this Agreement, or the transactions contemplated hereby or thereby. Furthermore, the Stockholders Representative shall not have any obligations to the stockholders to take any action unless the Stockholders Representative has been provided with funds, security or indemnities which, in his 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 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 his 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) the Stockholders Representative may disclose such nonpublic information to his legal counsel and other advisors under an obligation of confidentiality and non-use in its capacity as such (for the purpose of advising the stockholders 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 in any Action relating to this Agreement or the transactions contemplated hereby (or, in either case, discussion in preparation therefor) any information disclosed to the Stockholders Representative pursuant to this Agreement and (iii) the Stockholders Representative may disclose to any stockholder or Parent any information disclosed to the Stockholders Representative, on a need-to-know basis; provided, that such stockholder or Parent, as applicable, (A) agrees to observe the terms of this Section 8.1(d) with respect to such information or (B) is bound by an obligation of confidentiality to the Stockholders Representative of at least as high a standard as those imposed on the Stockholders Representative under this Section 8.1(d); provided, however, that Parent may in good faith designate any information provided to the Stockholders Representative to be sensitive and proprietary as to Parent, the Surviving Company, or any of the foregoing arising out of the willful violation of the law their Affiliates, in which case such information may not be disclosed by the Stockholders’ Stockholders Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to the contrary hereinstockholders; provided, further, that with respect to any such sensitive and proprietary information, Parent and the Stockholders’ Stockholders Representative shall have no liability work together in good faith to prepare a summary or obligation to any Parent Indemnified Party otherwise than, and only abstract of such information that may be disclosed by the Stockholders Representative to the extent of, her individual liability as a Stockholder as set forth in Section 6.3stockholders.
Appears in 1 contract
Sources: Merger Agreement (Kineta, Inc./De)
Stockholders’ Representative. The Stockholders hereby appoint (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, the Stockholder Representative, is hereby appointed as the true and lawful agent and representative, attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders 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 Stockholders with respect to the surrender judgment of the stock certificates owned by Stockholder Representative for the Stockholders to Federal in accordance with accomplishment of the terms and provisions of this Agreement, and to act on behalf of the Stockholders each Stockholder in any amendment of or litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, Agreement or any Ancillary Agreements and to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Stockholders’ such Stockholder Representative shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreement, including, without limitation, including the power:
2.4.1 (i) to act for take all action necessary or desirable in connection with the Stockholders with regard waiver of any condition to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf obligations of the Stockholders to consummate the transactions contemplated by this Agreement and to transact matters of litigationthe Ancillary Agreements;
2.4.2 (ii) to negotiate, execute and deliver all ancillary agreementsstatements, certificates certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents that the Stockholders’ Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this AgreementAgreement (it being understood that a Stockholder shall execute and deliver any such documents which the Stockholder Representative agrees to execute);
2.4.3 (iii) to act as the paying agent give and receive all notices and communications to be given or received under this Agreement and to receive funds and give receipts for fundsservice of process in connection with the any claims under this Agreement, including service of process in respect of any adjustments connection with arbitration; and
(iv) to the Purchase Price, and to do or refrain from doing the take all actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that which the Stockholders’ Stockholder Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders a Company Stockholder could do if personally present; and.
2.4.5 (j) Notwithstanding the enumerated powers granted to receive service of process the Stockholder Representative in connection with any claims under this Agreement. The appointment Section 9.1(a) above, the Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders’ Stockholders to consummate the transactions set forth in Section 5.3(f);
(k) If the Stockholder Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise becomes unable to serve as the Stockholders’ Stockholder Representative, the successor Stockholders’ Representative such other Person or Persons as may be designated by him who shall be designated in writing by one of the Stockholders who held a holding the majority of the ATS Purchaser Common Stock immediately prior 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 Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by power and authority of the Stockholders’ Stockholder Representative pursuant to this Section 2.4 Agreement, except in the case of the Stockholder Representative’s gross negligence, bad faith or willful misconduct. The Stockholder Representative shall be as valid as if such death or incapacityentitled to rely on the advice of counsel, termination public accountants or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required independent experts that it reasonably determines to be made experienced in the matter at issue, and will not be liable to any Stockholder for any action taken or delivered by Parent, Federal or ATS omitted to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge taken in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretogood faith based on such advice. The Stockholders hereby confirm all that will, severally and not jointly, indemnify (in accordance with their pro rata percentages) the Stockholders’ Stockholder Representative shall do or cause to be done by virtue from any losses arising out of her appointment its serving as the Stockholders’ Stockholder Representative of the Stockholders. The Stockholders’ Representative shall act hereunder, except for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages losses arising out of or caused by the Stockholder Representative’s gross negligence, bad faith or willful misconduct. The Stockholder Representative is serving in connection with the performance his capacity as such solely for purposes of her obligations administrative convenience, and is not personally liable in accordance with the provisions of this Agreement, except such capacity for any of the foregoing arising out obligations of the willful violation Stockholders hereunder, and the Purchaser and the Company agree that they will not look to the personal assets of the law Stockholder Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Stockholders’ Representative of her 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 Stockholders hereunder except to the extent ofof the Stockholder Representative’s gross negligence, her individual liability as a Stockholder as set forth in Section 6.3bad faith or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Fred ▇. ▇▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this AgreementFred ▇. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, or resigns, dies or is otherwise unable to serve as Jame▇ ▇. ▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders’ ' Representative, the successor Stockholders’ Representative "). The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action 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 Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and 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 best interest of such Stockholder and the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible 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 Stockholders' Representative shall inform each Stockholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to the Stockholders for any loss be done, given, or damages the Stockholders may suffer taken by the performance such Stockholders' Representative or taken by such Stockholders' Representative, and shall act as directed by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. The Stockholders hereby appoint ▇▇(a) Effective upon the Required Company Stockholder Vote, and without further action on the part of any Person, ▇▇▇▇▇ ▇▇▇▇▇ shall be designated and appointed as the true and lawful representative, agent and attorney-in-fact for and on behalf of each Stockholder (the “Stockholders’ Representative”) ), to perform any and all such acts as are required, authorized or contemplated by this Agreement, the Escrow Agreement and any other agreement entered into by the Stockholders’ Representative in his or her capacity as such, to be performed for or on behalf of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect Stockholders.
(b) Without limitation to the surrender of foregoing, the stock certificates owned appointment described in Section 2.9 (a) shall include the following exclusive authority given by the Stockholders to Federal in accordance the Stockholders’ Representative: (i) to resolve with Parent, any Parent’s Indemnified Person and the Surviving Corporation any disputes relating to claims for reimbursement and indemnification, to defend, commence and carry out any proceeding, and to otherwise settle any claim asserted by Parent, any Parent’s Indemnified Person or the Surviving Corporation, pursuant and subject to the terms and provisions of this Agreement, and (ii) to act on behalf of the Stockholders in any litigation or arbitration involving this Agreementdirect, 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 resolution of any matters related to the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf disposition of the Stockholders and Escrow, (iii) to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreementsdetermine, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf sole and absolute discretion of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor time or times when, the purposes for, and the manner in which, any power herein conferred shall be exercised and the provisions of any instrument or documents which may be executed by the Stockholders’ Representative pursuant hereto, and (iv) to employ such attorneys, accountants and agents as the Stockholders’ Representative may deem appropriate in connection with the duties of the Stockholders’ Representative hereunder; notwithstanding anything herein to the contrary, the Stockholders’ Representative does not have any authority to settle any claim against any director, officer or individual Stockholders, and may only settle claims made against the escrow. The Stockholders shall be bound by all actions taken by the Stockholders’ Representative in such capacity thereof. The Stockholders’ Representative shall be designated promptly, and in writing by any event within five business days, provide written notice to the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken on behalf of the Stockholders by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made authority delegated to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. under this Section 2.9.
(c) The Stockholders’ Representative shall at all times act for the Stockholders on all of the matters set forth in this Agreement such capacity in the a manner that the Stockholders’ Representative believes to be in the best interest of the Stockholders Stockholders. Neither the Stockholders’ Representative (nor any of the directors, officers, agents or employees of Stockholders’ Representative, if applicable) shall be liable to any Stockholder or any other person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement or the Escrow Agreement, except in the case of the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and consistent other experts selected by the Stockholders’ Representative and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the obligations under advice of such counsel, accountants or experts. The Stockholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, but the Stockholders’ Representative shall not be responsible required to exercise any discretion or take any action. Any portion of the Stockholders for Escrow Consideration to be distributed at the six-month anniversary of the Effective Date in accordance with Section 2.5 that may be remaining after satisfaction of all claims made prior to such six-month anniversary by Parent’s Indemnified Persons shall be available to indemnify and hold the Stockholders’ Representative harmless against any loss liability, loss, penalty, fine, claims, costs or damages the Stockholders may suffer by the performance expenses suffered or incurred by the Stockholders’ Representative arising out of her duties under this Agreement, other than loss or damage arising resulting from willful violation of the law any action taken or omitted to be taken by the Stockholders’ Representative of her duties under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. Any portion of the Escrow Consideration that may be remaining after satisfaction of all claims made prior to the one-year anniversary of the Effective Date by Parent’s Indemnified Persons shall further be made available to indemnify and holder the Stockholders’ Representative harmless from the liability, loss, penalty, fine, claims, costs or expenses suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement or the Escrow Agreement, other than such liabilities, losses, damages, claims, costs or expenses arising out of or resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, entitled to recover any out-of-pocket costs and indemnified against any loss or damages arising out of or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law expenses reasonably incurred by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of in connection with actions taken by the Stockholders’ RepresentativeRepresentative pursuant to the terms of this Agreement and the Escrow Agreement, subject to the limitation of the foregoing sentence. Any indemnification payment to the Stockholder’s Representative shall be taken ratably from the Escrow Shares and Escrow Cash being distributed (calculated using the Designated Stock Calculation). Notwithstanding anything to the contrary hereinherein or in the Escrow Agreement, (i) the Stockholders’ Representative is not authorized to, and shall not, accept on behalf of any Stockholder any Merger Consideration to which such Stockholder is entitled under this Agreement and (ii) the Stockholders’ Representative shall have no liability not in any manner exercise, or obligation seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent Indemnified Party otherwise thannow or hereafter owned of record or beneficially by any Stockholder unless the Stockholders’ Representative is expressly authorized to do so in a writing signed by such Stockholder.
(d) From and after the Effective Time, Parent shall cause the Surviving Corporation to provide the Stockholders’ Representative with reasonable access to information about the Surviving Corporation and only the reasonable assistance of the officers and employees of Parent and the Surviving Corporation for purposes of performing the duties and exercising the rights of the Stockholders’ Representative under this Agreement, provided that the Stockholders’ Representative shall treat confidentially any nonpublic information he receives from Parent regarding the Parent and Surviving Corporation (except as may be required for the performance of the duties or the exercise of the rights of Stockholders’ Representative under this Agreement, in which case the Stockholders’ Representative shall provide Parent with prior notice of any intended use or disclosure of such nonpublic information and permit Parent a reasonable opportunity to take appropriate steps to protect such information). The Stockholders’ Representative may discuss any claim made against the extent ofescrow and any proposed manner of resolving that claim with other Stockholders.
(e) In the event that ▇▇▇▇▇ ▇▇▇▇▇ shall cease to serve as Stockholders’ Representative for any reason (including by resignation which is hereby permitted), her individual liability as then the holders of a Stockholder as set forth in Section 6.3majority of the Escrow Shares at such time shall appoint a successor Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Exelixis Inc)
Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ (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 agreed, appointed and approved Shareholder Representative Services LLC as the true Stockholders’ Representative as of the Closing empowering it to act, with full power of substitution, as the representative by and lawful 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”) Representative reasonably determines may be necessary or required under the terms and conditions of the Stockholders with full power of substitution to act in the namethis Agreement or applicable Law or may be required for future expenses or obligations, place and stead of the Stockholders including with respect to the surrender 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 certificates owned 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 Contemplated Transactions, (vi) 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, (vii) to refrain from enforcing any right of the Equityholders or any of them or the Stockholders’ Representative arising out of, under or in any manner relating to this Agreement and 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 such right or interest by the Stockholders Stockholders’ Representative or by such Equityholders unless such waiver is in writing signed by the waiving party or by the Stockholders’ Representative, (viii) to Federal negotiate, settle, compromise and otherwise handle all disputes with Parent or any other Parent Indemnified Party under this Agreement, including disputes regarding any adjustment pursuant to Section 2.6 and any indemnification claims made by any Parent Indemnified Party, (ix) to give and receive notices on behalf of the Equityholders, including any notice of an indemnification claim for which indemnification is sought by the Equityholders pursuant to Section 6.3 and 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 rights which the terms and provisions of Equityholders are permitted or required to do or exercise under this Agreement; provided, and however, that the Stockholders’ Representative shall have no obligation to act on behalf of the Stockholders in any litigation or arbitration involving this AgreementEquityholders. Without limiting the foregoing, act as the paying agent on behalf of Equityholders, by accepting the Stockholdersconsideration payable to them hereunder, do or refrain from doing all such further acts and things, and execute all such documents as irrevocably grant unto the Stockholders’ Representative shall deem as said attorney-in-fact and agent full power and authority to do and perform each and every act and thing necessary or appropriate required to be done after the Closing in connection with the transactions contemplated by this Agreement, including, 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 limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf consent of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary Representative, and survive the death, incompetency, bankruptcy or appropriate in connection with liquidation of any Equityholder and the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent Transactions. All actions, decisions and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment instructions of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocabletaken, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of made or given pursuant to the authority granted to the Stockholders’ Representative in all matters referred pursuant to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative this Section 6.7 shall be designated in writing by conclusive and binding upon each Equityholder, and no Equityholder shall have the Stockholders who held a majority right to object to, dissent from, protest or otherwise contest the same. The terms and conditions of this Agreement are hereby made, and are hereby acknowledged to be, dependent on the ATS Common Stock immediately prior determinations and actions that are contemplated or permitted to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken be made by the Stockholders’ Representative pursuant to this Section 2.4 6.7, and the rights of all the Equityholders shall be qualified by and dependent upon such determinations and actions, irrespective of whether the Stockholders’ Representative is acting as valid 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 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 death Organizational Document, or incapacity, termination the Escrow Agreement). Notices or communications to or 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 the Equityholders’ favor in connection with the Contemplated Transactions.
(d) In the event had 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 occurredbe liable for any action or omission pursuant to the advice of counsel. The Equityholders shall indemnify the Stockholders’ Representative against any reasonable, regardless documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of whether or in connection with this Agreement, the Contemplated Transactions and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the 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 Agreement at such time as such amounts would otherwise be distributable to the Equityholders; provided, that while the Stockholders’ Representative may be paid from the aforementioned sources of funds, this does not relieve the Equityholders 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 Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the 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 Surviving Corporation termination of this Agreement. The indemnity obligations of this Section 6.7(e) shall have received notice survive the Closing, the resignation, replacement or removal of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for or the benefit termination of this Agreement.
(f) Each of Parent (on its own behalf and on behalf of the Stockholders other Parent Indemnified Parties), Merger Sub and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all 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 do be brought by or cause to be done by virtue on behalf of her appointment as 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 Stockholders. The Stockholders’ Representative parties” shall act for the Stockholders on all of the matters set forth in this Agreement in the manner not be deemed to require performance by, or be an agreement of, the Stockholders’ Representative believes to be unless performance by the Stockholders’ Representative is expressly provided for in such covenant or the best interest of the Stockholders and consistent with the obligations under this AgreementStockholders’ Representative expressly so agrees in writing, but the Stockholders’ Representative shall not be responsible receive the benefit of any provision of the “parties” or “each of the parties” including with respect to the Stockholders for any loss or damages miscellaneous provisions set forth in this Section 6.7).
(g) At the Stockholders may suffer by Effective Time of Merger I, Parent shall deliver to the performance Stockholders’ Representative the Stockholders’ Representative Expense Fund, to be held by the Stockholders’ Representative of her duties under this Agreementto cover and reimburse the fees, expenses and other than loss or damage arising from willful violation of the law monetary obligations incurred by the Stockholders’ Representative. The Equityholders will not receive any interest or earnings on the Stockholders’ Representative of her duties under this AgreementExpense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will hold these funds separate from its corporate funds and her heirs and personal or legal representatives shall be held harmless by will not voluntarily make these funds available to its creditors in the Stockholders from, and indemnified against any loss or damages arising out event of or in connection with bankruptcy. As soon as practicable following the performance of her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution completion of the Stockholders’ Representative. Notwithstanding anything to the contrary herein’s responsibilities, the Stockholders’ Representative shall have no liability or obligation to will deliver any Parent Indemnified Party otherwise than, and only remaining balance of the Stockholders’ Representative Expense Fund to the extent ofPaying Agent for further distribution to the Equityholders. With respect to the Tendering Stockholders, her individual liability as a the Paying Agent shall pay such Stockholder as 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 Section 6.3such 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. The Stockholders (a) Each Stockholder hereby appoint irrevocably constitutes and appoints, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact ▇▇. ▇▇▇▇ ▇▇▇▇▇, jointly (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name), place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate attorneys-in-fact and agents in connection with the transactions contemplated by this Agreement. This power is irrevocable and coupled with an interest, includingand shall not be affected by the death, without limitationincapacity, the power:
2.4.1 illness or other inability to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise of any indemnity claim on behalf of the Stockholders and to transact matters of litigation;Stockholder.
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that (b) Each Stockholder hereby irrevocably grants the Stockholders’ Representative deems necessary or full power and authority on behalf of such Stockholder:
(i) to execute and 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 in connection with the consummation of to consummate the transactions contemplated by this Agreement;.
2.4.3 (ii) to act as the paying agent (A) dispute or refrain from disputing any claim made by Buyer under this Agreement; (B) negotiate and to receive funds and give receipts for funds, including in respect of compromise any adjustments to the Purchase Pricedispute that may arise under, and to do exercise or refrain from doing 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 further described in would constitute an improper discrimination, each of the Paying Agent 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;
2.4.4 (v) to do engage attorneys, accountants and agents at the expense of Stockholders; and
(vi) to give such instructions and to take such action or refrain from doing any further act or deed on behalf of the Stockholders that taking such action as the Stockholders’ Representative deems deems, in its sole discretion, necessary or appropriate in her sole discretion relating to carry out the subject matter of 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 Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims 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. The appointment , shall be effective until the rights and obligations of the Stockholders’ Representative under this Agreement shall be deemed coupled with an interest terminate by virtue of the termination of any and shall be irrevocable, all rights and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action obligations of such Stockholder to Buyer under this Agreement;
(iii) if the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies resigns or is removed or otherwise unable ceases to serve 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 (who shall be a Stockholder) and, under such circumstances, Buyer and the Company shall be entitled to rely on any and all actions taken by such Stockholders’ Representative, ;
(iv) the successor Stockholders’ Representative shall not be designated in writing by the Stockholders who held a majority of the ATS Common liable to any Stock immediately prior for losses with respect to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken or any omission by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if Article X, except to the extent such death or incapacity, termination or other event had not occurred, regardless of whether or not losses are caused by such the Stockholders’ Representative Representative’s gross negligence or willful misconduct.
(d) Each Stockholder agrees that, notwithstanding the Surviving Corporation foregoing, at the request of Buyer, he shall have received notice of such death, incapacity, termination take all actions reasonably necessary or other event. All notices required appropriate to be made or delivered consummate the transactions contemplated by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. this Agreement.
(e) The Stockholders’ Representative shall act for agrees to execute the Stockholders on all of the matters set forth in this Escrow Agreement in substantially the manner form attached hereto as Exhibit A, with such changes thereto as the Stockholders’ Representative believes Company and the Buyer reasonably agree to be prior to Closing acting in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3good faith.
Appears in 1 contract
Sources: Merger Agreement (Optium Corp)
Stockholders’ Representative. The Stockholders Each Seller hereby appoint ---------------------------- irrevocably constitutes and appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (together with her permitted successor hereunder, the "Sellers' Representative"), as the such Seller's true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in enter into any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate agreement in connection with the transactions contemplated hereunder, to exercise all or any of the powers, authority and discretion conferred on such Seller hereunder, to receive payment of such Seller's allocable portion of the cash consideration on behalf of such Seller, to give and receive notices on such Seller's behalf and to represent such Seller with respect to any matter, suit, claim, action or proceeding arising with respect to any transaction contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power defense, appeal or settlement of any claim, action or proceeding for which such Seller may be obligated to compromise indemnify any indemnity claim on behalf of person pursuant to this Agreement or which may be brought by the Stockholders Purchaser against such Seller to enforce such indemnity, and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Sellers' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 hereby agrees to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Priceas, and to do or refrain from doing undertake the actions further described duties and responsibilities of, such agent and attorney-in-fact. Each Seller hereby ratifies and confirms, and hereby agrees to ratify and confirm, any action taken by the Sellers' Representative in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf exercise of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating power of attorney granted to the subject matter Sellers' Representative pursuant to this Section, which power of this Agreement attorney, being coupled with an interest, is irrevocable and shall survive the Paying Agent Agreement as fully and completely as death, incapacity or incompetence of such Seller. If the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Sellers' Representative shall be deemed coupled with an interest and unable to serve in such capacity, each Seller hereby agrees that her successor shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve ▇. ▇▇▇▇▇▇. Notwithstanding the appointment of the Sellers' Representative as the Stockholders’ RepresentativeSellers' attorney-in-fact, as aforesaid, it is expressly understood and agreed that the successor Stockholders’ Representative Purchaser shall be designated in writing entitled to delivery at Closing of the following documents, pursuant to Section 1.9 hereof, executed by the Stockholders who held a majority appropriate one or ones of the ATS Common Sellers and not Sellers' Representative:
a) The Endorsed Certificates or Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.Powers; and
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Stock and Real Estate (Eastern Environmental Services Inc)
Stockholders’ Representative. (a) In order to efficiently administer certain matters contemplated hereby following the Closing, including any actions that the Stockholders' Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.9, 1.10 and 8, the Participating Holders, by the adoption of this Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the Letters of Transmittal shall be deemed to have designated Shareholder Representative Services LLC as the representative of the Participating Holders (the "Stockholders' Representative").
(b) The Stockholders hereby appoint ▇▇▇▇▇▇▇ as Stockholders' Representative may resign at any time, and the Participating Holders who hold at least a majority in interest of the Indemnity Pro Rata Fractions at the time of any vote shall be authorized to replace the Stockholders' Representative and such substituted representative shall be deemed to be the Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement and/or the delivery of the Letter of Transmittal contemplated by Section 1.8, the Participating Holders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders' Representative shall be appointed and constituted the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Participating Holder, with full power of substitution in his, her or its name and on his, her or its behalf to act according to the terms of this Agreement and the Escrow Agreement and in general to do all things and to perform all acts including, without limitation, executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement or the nameEscrow Agreement and which shall be binding on each Participating Holder. The Stockholders' Representative hereby accepts such appointment;
(ii) without limiting the foregoing, place and stead as of the Stockholders with respect Effective Time the Stockholders' Representative shall have full authority to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms (A) execute, deliver, acknowledge, certify and provisions of this Agreement, and to act file on behalf of the Stockholders Participating Holders (in the name of any or all of the Participating Holders or otherwise) any and all documents that the Stockholders' Representative may, in its sole discretion, determine to be necessary, desirable or appropriate, in such forms and containing such provisions as the Stockholders' Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall be given or received by the Participating Holders individually), (C) take or refrain from taking any actions (whether by negotiation, settlement, litigation or arbitration involving otherwise) to resolve or settle all matters and disputes arising out of or related to this 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;
(iii) Parent shall be entitled to rely conclusively, and shall be protected in acting, or refraining from acting, upon any written notice, instruction, request or decision given or made by the Stockholders' Representative as to any of the matters described in this Section 1.12 as if such notice, instruction, request or decision had been given or made by all of the Participating Holders, and no party shall have any cause of action against Parent or the Surviving Corporation for any action or inaction of Parent in reliance upon any such notice, instruction, request or decision;
(iv) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon each of the Participating Holders;
(v) no Participating Holder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, act as except for fraud, gross negligence or willful misconduct on the paying agent on behalf part of the Stockholders' Representative;
(vi) the provisions of this Section 1.12 are independent and severable, do or refrain from doing all such further acts are irrevocable and thingscoupled with an interest, and execute all such documents as the Stockholders’ Representative shall deem necessary be enforceable notwithstanding any rights or appropriate remedies that any Participating Holder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service (vii) the provisions of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative Section 1.12 shall be deemed coupled with an interest binding upon the executors, heirs, legal representatives successors and shall be irrevocableassigns of each Participating Holder, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth references in this Agreement in to a Participating Holder or the manner Participating Holders shall mean and include the successors to the Participating Holders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise. As between the Participating Holders, on the one hand, and the Stockholders’ ' Representative believes to be in on the best interest of the Stockholders and consistent with the obligations under this Agreementother hand, but the Stockholders’ ' Representative shall not be responsible liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith, and any act done or omitted to be done pursuant to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative advice of her duties under this Agreement, other than loss or damage arising from willful violation counsel shall be conclusive evidence of the law by the Stockholders’ Representative of her duties under this Agreementsuch good faith. The Stockholders’ ' Representative and her heirs and personal or legal representatives shall be entitled to be indemnified, defended, held harmless and reimbursed by the Stockholders from, and indemnified Participating Holders against any loss or damages loss, liability damage, claim, penalty, fine, forfeiture, action, fee, cost and expense (including the reasonable fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, "Representative Losses") arising out of or in connection with the Stockholders' Representative's execution and performance of her obligations in accordance with this Agreement and the provisions of this Escrow Agreement, except for in each case as such Representative Loss is suffered or incurred; provided, that in the event that any of the foregoing arising out of the willful violation of the law such Representative Loss is finally adjudicated to have been primarily caused by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation bad faith, gross negligence or substitution willful misconduct of the Stockholders’ ' Representative. Notwithstanding anything to the contrary herein, the Stockholders’ ' Representative shall have no liability will reimburse the Participating Holders the amount of such indemnified Representative Loss attributable to such bad faith, gross negligence or obligation willful misconduct. Any such Representative Losses may be recovered at the election of the Stockholders' Representative, at any time from: (i) the Expense Fund; (ii) the Escrow Fund, at such time as remaining amounts would otherwise be distributable to any Parent Indemnified Party otherwise than, the Participating Holders and only to the extent ofany funds remain in such fund; or (iii) from the Participating Holders directly according to the Indemnity Pro Rata Fraction of each Participating Holder; provided, her individual liability however, that while this section allows the Stockholders' Representative to be paid from the Expense Fund and the Escrow Fund, this does not relieve the Participating Holders from their obligation to promptly pay such Representative Losses as a Stockholder as set forth in Section 6.3they are suffered or incurred, nor does it prevent the Stockholders' Representative from seeking any remedies available to it at law or otherwise.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Millennial Media Inc.)
Stockholders’ Representative. The (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 appoint designate ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ as the true and lawful agent and attorney-in-fact 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 Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent Agreement on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with 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 this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim or on behalf of the Stockholders by the terms of this Agreement, including without limitation, the execution and delivery of documents to transact matters of litigation;transfer the Company Shares to Buyer.
2.4.2 to execute and deliver all ancillary agreements, certificates and documents (c) In the event that the Stockholders’ ' Representative deems necessary dies, becomes legally incapacitated or appropriate resigns from such position, R. ▇▇▇▇▇ ▇▇▇▇▇ shall fill such vacancy and shall be deemed to be the Stockholders' Representative for all purposes of this Agreement; however, no change in connection with the consummation 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 transactions contemplated by 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) 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;
2.4.3 to act as (ii) all actions, decisions and instructions of the paying agent Stockholders' Representative shall be conclusive and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf binding upon all of the Stockholders that and no Stockholder shall have any cause of action against the Stockholders’ ' Representative deems necessary for any action taken, decision made or appropriate in her sole discretion relating to instruction given by the subject matter Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) remedies available at law for any breach of the provisions of this Section 1.4 are inadequate; therefore, Buyer shall be entitled to temporary and permanent injunctive relief without the Paying Agent Agreement as fully and completely as necessity of proving damages if Buyer brings an action to enforce the Stockholders could do if personally presentprovisions of this Section 1.4; and
2.4.5 to receive service (iv) the provisions of process in connection with any claims under this Agreement. The appointment Section 1.4 are independent and severable, shall constitute an irrevocable power of the Stockholders’ Representative shall be deemed attorney, coupled with an interest and surviving death, granted by the Stockholders to the Stockholders' Representative and shall be irrevocablebinding upon the executors, heirs, legal representatives and Parent, Federal successors of each Stockholder.
(f) All fees and ATS may conclusively and absolutely rely, without inquiry, upon any action of expenses incurred by the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ ' Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken paid by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The (a) Pursuant to the Stockholders hereby appoint ▇▇▇▇▇▇▇ Approval dated on or about the date hereof and the Letters of Transmittal and Option Cancelation Acknowledgement Agreements, as applicable, the Equityholders have constituted, appointed and empowered effective from and after the date of such consent, Parthenon Investors III, L.P. as the true Stockholders’ Representative, for the benefit of the Equityholders and lawful the exclusive agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of each Equityholder, in connection with and to facilitate the Stockholders consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the 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 litigation 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 arbitration involving appropriate under this Agreement, act as the paying agent 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, do or refrain from doing all such further acts and things’ Representative and/or any of the Equityholders, and execute receive process on behalf of any or all Equityholders in any such documents 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 appropriate proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim accountants and other advisors and incur such other expenses on behalf of the Stockholders Equityholders in connection with any matter arising under this Agreement; and (vi) to transact matters collect, hold and disburse the Escrow Amount and the Expense Holdback Amount in accordance with the terms of litigation;this Agreement. The Equityholders may not make any claim hereunder except through the Stockholders’ Representative.
2.4.2 (b) The Stockholders’ Representative shall be entitled to execute receive reimbursement from, and deliver 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 ancillary agreements, certificates and documents that or any of the powers conferred upon the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for fundshereunder, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that (i) the Stockholders’ Representative deems necessary shall incur no responsibility whatsoever to any Equityholders by reason of any act or appropriate in her sole discretion relating omission performed or omitted hereunder, excepting only responsibility for any act or failure to the subject matter of this Agreement act which represents willful misconduct, and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of (ii) the Stockholders’ Representative shall be deemed 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).
(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) Parent and the Surviving Corporation shall have the right to rely upon all actions taken or omitted to be taken by the Stockholders’ Representative pursuant to this Agreement, 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 irrevocableirrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and (ii) shall survive the consummation of the Merger, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 2.4 Agreement shall be as valid as if effective and binding on each Equityholder notwithstanding any contrary action of or direction from such death Equityholder, except for actions or incapacity, termination or other event had not occurred, regardless omissions of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. constituting willful misconduct.
(f) The Stockholders’ Representative shall act for has the Stockholders on all of the matters set forth in limited partnership authority to execute and deliver this Agreement in and to perform the manner the Stockholders’ Representative believes to be in the best interest limited administrative responsibilities hereunder. The execution, delivery and performance of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance Agreement by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations has been duly authorized 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution limited partnership agreement of the Stockholders’ Representative. Notwithstanding anything No other limited partnership action on the part of the Stockholders’ Representative is necessary to authorize the contrary hereinexecution, delivery and performance of this Agreement by the Stockholders’ Representative. This Agreement has been duly executed and 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 shall have no liability or obligation to any Parent Indemnified Party otherwise thanhereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and only agrees to act as the Stockholders’ Representative and to discharge the duties of the Stockholders’ Representative pursuant to the extent of, her individual liability as a Stockholder as set forth in Section 6.3terms of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Emdeon Inc.)
Stockholders’ Representative. The Stockholders Each Stockholder hereby appoint designates and appoints M▇▇▇▇ ▇▇▇▇▇▇ as the true and lawful agent and exclusive agent, attorney-in-fact and representative (the “Stockholders’ Representative”) for and on behalf of the Stockholders such Stockholder, with full power of substitution substitution, to:
(a) receive and accept service of any and all notices, requests and other communications to act in the name, place and stead of the Stockholders with respect be delivered to the surrender of the stock certificates owned by the Stockholders to Federal any Stockholder in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf service of the Stockholders and to transact matters of litigationall legal process;
2.4.2 (b) send to execute the Parent or its successors or permitted assigns any and deliver all ancillary agreementsnotices, certificates requests and documents that the Stockholders’ Representative deems necessary or appropriate other communications in connection accordance with the consummation terms of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds(c) defend all indemnity claims, including in respect of any adjustments to the Purchase Priceconsenting to, compromising or settling all indemnity claims, and otherwise acting pursuant to do Article VIII; and
(d) be each Stockholder’s sole and exclusive representative to communicate, respond, consent, answer or refrain otherwise act with respect to any matter arising out of or involving this Agreement (including, without limitation, with respect to all notices, requests and demands by the Parent claiming for indemnification under this Agreement). In the event of, and from doing the actions further described in time of, the Paying Agent Agreement;
2.4.4 above named Stockholders’ Representative’s or any successor’s resignation, death or disability, the Parent shall continue to do or refrain from doing any further act or deed on behalf of the Stockholders that the address all notices, requests and other communications to such Stockholders’ Representative deems necessary or appropriate in her sole discretion relating until there is delivered to the subject matter Parent an instrument duly executed by the holders of this Agreement and a majority of the Paying Agent Agreement as fully and completely as Common Stock presently held by the Stockholders could do if personally present; and
2.4.5 or their respective legal representatives appointing a successor to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority on all of the ATS Common Stock immediately prior to the Closingsame terms and conditions as set forth herein. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action All actions taken by the Stockholders’ Representative pursuant to this Section 2.4 the foregoing appointment and authority shall be as valid binding upon each Stockholder and such Stockholder’s respective heirs, executors, administrators, successors and assigns as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation expressly ratified and confirmed in writing by each Stockholder. The authority granted hereunder is deemed to be coupled with an interest. The Parent shall have received notice of such death, incapacity, termination the right to rely on any actions taken or other event. All notices required omitted to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance taken by the Stockholders’ Representative of her duties under this Agreement, other than loss as being the act or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution omission of the Stockholders’ Representative, without the need for any inquiry. Notwithstanding anything to the contrary herein, 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 obligation to under any Parent Indemnified Party otherwise thanother document entered into in connection herewith, and only the Stockholders jointly and severally agree to indemnify and hold the extent of, her individual liability Stockholders’ Representative free and harmless against any and all Losses which the Stockholders’ Representative may sustain as a Stockholder as set forth result of any action taken in Section 6.3good faith hereunder or under any other document entered into in connection herewith.
Appears in 1 contract
Sources: Merger Agreement (Sbarro Inc)
Stockholders’ Representative. The Stockholders (a) By executing and delivering this Agreement, each Stockholder hereby appoint irrevocably makes, constitutes and appoints H. ▇▇▇▇▇▇▇ as the ▇▇▇▇▇▇▇ his or her true and lawful agent and attorney-in-fact (the “"Stockholders’ ' Representative”") of the Stockholders with full power of substitution 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 hereinafter provided, in the name, place name of and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms for and provisions of this Agreement, and to act on behalf of the Stockholders each Stockholder, as fully as could each such Stockholder if present and acting in any litigation or arbitration involving this Agreementperson, act as the paying agent on behalf of the Stockholders, do or refrain from doing with respect to all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 , the sale of the Shares to act as the paying agent Buyer, and to receive funds and give receipts for funds, including in respect the exercise or waiver of any adjustments right and performance of any obligation of the Stockholders in connection therewith, including, but not limited to, the right, power and authority to:
(i) amend this Agreement and take all actions as may be necessary or deemed to be desirable by the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed Stockholders' Representative on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating , with respect to the subject matter of this Agreement and the Paying Agent consummation of the transactions contemplated hereby, including, without limitation, the execution and delivery of certificates, consents, waivers, and notices on behalf of the Stockholders;
(ii) determine whether the Buyer has performed its obligations hereunder and 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 fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process appropriate, in connection with any claims and all matters referred to herein to represent the Stockholders in connection with the transactions referred to in this Agreement; and
(iv) take or cause to be taken any and all further actions, and execute and deliver or cause to be executed and delivered, any and all such agreements, instruments, documents, certificates and stock powers, with such changes as the Stockholders' Representative in his sole discretion may approve (such approval to be evidenced conclusively by his signature 39 to this Agreement) as may be necessary or deemed to be desirable by the Stockholders' Representative, to effectuate, implement and otherwise carry out the transactions contemplated by this Agreement.
(b) By their execution of this Agreement, each Stockholder also agrees that:
(i) the Buyer shall be able to rely conclusively on the instructions given, and decisions made, and other actions taken by the Stockholders' Representative under this Agreement. The appointment , 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 shall be deemed 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 irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in enforceable under all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing circumstances unless prohibited by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with law;
(iv) the provisions of this Agreement, except for Section 8.12 shall be binding upon and inure to any successor in interest to or permitted assigns of any Stockholder; and
(v) the authority of the foregoing arising out of the willful violation of the law by the Stockholders’ ' Representative of her duties hereunder. The foregoing indemnity and any substitute or attorney-in-fact for such Stockholders' Representative shall survive the resignation Closing and any death or substitution legal disability 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, her individual liability Stockholder as a Stockholder as set forth in Section 6.3.power coupled with an interest. [signatures on following page]
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) ▇▇▇▇ ▇▇▇▇▇▇ as the true (such person and lawful agent and attorney-in-fact (any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this AgreementCompany Participants, and shall be authorized to act on behalf of the Stockholders in Company Participants and to take any litigation and all actions required 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 permitted to be taken by the Stockholders’ Representative shall deem necessary or appropriate in connection under this Agreement with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 respect to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, any claims (including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary settlement thereof) made by a Parent Indemnified Party or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act a Stockholder Indemnified Party (as the paying agent case may be) for indemnification pursuant to this Article IX and with respect to receive funds and give receipts for funds, including in respect of any adjustments actions to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the terms of the Escrow Agreement (including, without limitation, the exercise of the power to (i) authorize the delivery of Escrow Funds to a Parent Indemnified Party or, in Parent’s sole discretion, setoff against the Aggregate Earn-Out Amount, if permitted under this Section 2.4 shall be as valid as if such death or incapacityAgreement, termination or other event had not occurredin satisfaction of claims by a Parent Indemnified Party, regardless (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of whether or not courts with respect to any claims for indemnification and (iii) take all actions necessary in the Stockholders’ Representative or the Surviving Corporation shall have received notice judgment of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit accomplishment of the Stockholders and shall discharge in full foregoing). In all notice requirements of Parentmatters relating to this Article IX, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause be the only party entitled to be done by virtue assert the rights of her appointment as 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 (10) days prior notice to Parent, at which time the holders of a majority of the shares of Company Stock immediately prior to the 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 by the Stockholders’ Representative in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. The Stockholders’ Representative shall at all times act for the Stockholders on all of the matters set forth in this Agreement his or her capacity as Stockholders’ Representative in the a manner that the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with Company Participants. Neither the obligations Stockholders’ Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, but except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Stockholders’ Representative shall not be responsible to exercise any discretion or take any action.
(c) Each Company Participant shall indemnify and hold harmless and reimburse the Stockholders for Stockholders’ Representative from and against such Company Participant’s ratable share of any loss and all liabilities, losses, damages, claims, costs or damages the Stockholders may suffer by the performance expenses suffered or incurred by the Stockholders’ Representative arising out of her duties under this Agreement, other than loss or damage arising resulting from willful violation of the law any action taken or omitted to be taken by the Stockholders’ Representative of her duties under this Agreement or the Escrow Agreement. The Stockholders’ Representative and her heirs and personal , other than such liabilities, losses, damages, claims, costs or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages expenses arising out of or in connection with the performance of her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of resulting from the Stockholders’ Representative. ’s gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary hereinherein or in the Escrow Agreement, the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise thanis not authorized to, and only shall not, accept on behalf of any Company Participant any Transaction Consideration to which such Company Participant is entitled under this Agreement and the extent ofStockholders’ Representative shall not in any manner exercise, her individual liability as 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 Stockholder as set forth in Section 6.3writing signed by such Company Participant.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders holders of Non-Series F Securities (by virtue of the approval of the Merger and the adoption of this Agreement) hereby irrevocably nominate, constitute and appoint C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the agent and true and lawful agent and attorney-in-fact of the holders of Non-Series F Securities (the “Stockholders’ Representative”) of the Stockholders ), with full power of substitution substitution, to act in the name, place and stead of the Stockholders holders of Non-Series F Securities for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in his sole discretion, determine to be necessary, desirable or appropriate in connection with respect to any claim for indemnification, compensation or reimbursement under Section 7 or under the surrender Escrow Agreement and any defense thereof. C. ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby accepts his appointment as the Stockholders’ Representative.
(b) The holders of Non-Series F Securities (by virtue of the stock certificates owned by approval of the Stockholders to Federal in accordance with Merger and the terms and provisions adoption of this Agreement) grant to the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and to act file on behalf of the Stockholders holders of Non-Series F Securities (in the name of any litigation or arbitration involving this Agreement, act as the paying agent on behalf all of the holders of Non-Series F Securities or otherwise) any and all documents that the Stockholders’ Representative may, do in his sole discretion, determine to be necessary, desirable or refrain from doing all appropriate, in such further acts forms and things, and execute all containing such documents provisions as the Stockholders’ Representative shall deem necessary 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 appropriate in any other Contract executed in connection with the transactions contemplated by this Agreementhereby, including, without limitation, the power:
2.4.1 each Indemnitee shall be entitled to act for the Stockholders deal exclusively with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with on all matters relating to Section 7 and the consummation of the transactions contemplated by this Escrow Agreement;
2.4.3 , and shall be entitled to act as the paying agent and to receive funds and give receipts for funds, including in respect rely conclusively (without further evidence of any adjustments kind whatsoever) on any document executed or purported to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed be executed on behalf of any holder of Non-Series F Securities by the Stockholders that 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 holder of Non-Series F Securities. All decisions and actions by the Stockholders’ Representative deems necessary 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 appropriate otherwise contest such decision or action.
(c) The power of attorney granted in her sole discretion relating 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 subject matter holders of this Agreement 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 death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent and Escrow Agent of the Paying identity of such successor. Unless and until the Escrow Agent Agreement as fully and completely as shall receive notification of the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of 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 coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior refer to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken holders of Non-Series F Securities.
(e) All expenses incurred by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations his duties as Stockholders’ Representative shall be borne and paid exclusively by the holders of the Non-Series F Securities in accordance with the provisions of this Agreement, except for any terms of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or 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, her individual liability as a Stockholder as set forth in Section 6.3Escrow Charter.
Appears in 1 contract
Stockholders’ Representative. The By the execution and delivery of this Agreement, each of the Stockholders hereby irrevocably constitute and appoint ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Stockholders’ Representative”) as the his, her or its true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the such Stockholders with respect to the surrender transfer of the stock certificates shares of Stock owned by the such Stockholders to Federal the Buyer in accordance with the terms and provisions of this Agreement, and to act on behalf of the such Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, to do or refrain from doing all such further acts and things, and to execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with this Agreement or otherwise relating to the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 (a) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to defend, negotiate, assert, and compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 (b) to execute and deliver all amendments, waivers, ancillary agreementsagreements (including the Escrow Agreement), assignments, certificates and documents documents, and take any and all actions, that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreementconnection;
2.4.3 (c) to act as execute and deliver all consents, amendments and waivers to this Agreement that the paying agent and Stockholders’ Representative deems necessary or appropriate, whether prior to, at or after the Closing;
(d) to receive funds funds, make payments of funds, and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (e) to receive funds for the payment of expenses of the Stockholders and apply such funds in payment for such expenses;
(f) to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her its sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 (g) 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 the Buyer and ATS any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS the Buyer to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation Buyer to the Stockholders with respect thereto. The Stockholders hereby confirm all actions that the Stockholders’ Representative shall do or cause to be done by virtue of her its appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement and the Escrow 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 and the Escrow Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her its duties under this Agreement or the Escrow Agreement, other than loss or damage arising from willful violation of law or gross negligence in the law by the Stockholders’ Representative performance of her its duties under this Agreement. The Stockholders agree jointly and severally to indemnify, defend and hold harmless the Stockholders’ Representative from and her heirs against any and personal or legal representatives shall all loss, damage, liability and expense that may be held harmless incurred by the Stockholders from, and indemnified against any loss or damages Stockholders’ Representative arising out of or in connection with its appointment as Stockholders’ Representative under this Agreement (except such as may result from the Stockholders’ Representative’s willful violation of law or gross negligence in the performance of her obligations in accordance with the provisions of its duties under this Agreement), except for including the legal costs of defending itself against any of the foregoing arising out of the willful violation of the law claim or liability in connection with its performance under this Agreement and all other documents and agreements executed and delivered by the Stockholders’ Representative of her duties hereunderin connection with this Agreement, including, without limitation the Escrow Agreement. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything to , each Stockholder and the contrary herein, Buyer expressly acknowledge that the Stockholders’ Representative shall have no liability authority or obligation responsibility to act on behalf of any Parent Indemnified Party otherwise thanStockholder in connection with any claim, and only action or proceeding initiated against such Stockholder pursuant to a breach by such Stockholder of such Stockholders’ individual representations, warranties or covenants hereunder. All decisions by the extent of, her individual liability as a Stockholder as set forth in Section 6.3Stockholder’s Representative shall be binding upon all Stockholders.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby (a) Each Stockholder who votes for or consents to the adoption of this Agreement (each, an “Approving Stockholder“) and the approval of the transactions contemplated hereby, including the Merger, shall irrevocably appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and, if ▇▇. ▇▇▇▇▇▇▇ is unable or unwilling for any reason to continue, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) as the Stockholders’ Representative on his or her behalf, with the same effect as if each of such Approving Stockholder had individually appointed such Stockholders’ Representative, with full power and authority to act in the name of and for and on behalf of each Approving Stockholder with respect to all matters arising in connection with, or related to, this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby. Each of the matters referred to in this Section 10.17 shall be deemed to have been accepted, agreed upon, acknowledged or consented to, as applicable, by each Approving Stockholder upon the vote or consent by such Approving Stockholder for the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger. The Stockholders’ Representative has been appointed (i) the agent and true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Approving Stockholder, with full power of substitution substitution, and with full capacity and authority in its sole discretion, to act in the namename of and for and on behalf of each Approving Stockholder in connection with all matters arising out of, place resulting from, contemplated by or related or incident to this Agreement and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Escrow Agreement, and (ii) the agent for service of process for each Approving Stockholder, and the Approving Stockholders have irrevocably consented to act on behalf the service of any and all process in any action or proceeding arising out of or relating to this Agreement by the delivery of such process to the Stockholders’ Representative. Without limiting the generality of the Stockholders in any litigation or arbitration involving this Agreementforegoing, act as the paying agent on behalf power of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection include the power to represent each Approving Stockholder with respect to all aspects of this Agreement and the transactions contemplated by this Escrow Agreement, includingwhich power shall include, without limitation, the power:
2.4.1 power to act for (i) receive any payment or transfer to be made pursuant to this Agreement or the Stockholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including (ii) waive any and all conditions of this Agreement or the power Escrow Agreement, (iii) amend this Agreement or the Escrow Agreement and any agreement executed in connection herewith or therewith in any respect, (iv) bring, assert, defend, negotiate or settle any claims or actions for indemnity pursuant to compromise ARTICLE IX hereof, (v) retain legal counsel and be reimbursed by the Approving Stockholders for all fees, expenses and other charges of such legal counsel, (vi) receive notices or other communications, (vii) deliver any indemnity claim on behalf of the Stockholders notices, certificates or other documents required, and (viii) take all such other action and to transact matters of litigation;
2.4.2 to execute and deliver do all ancillary agreements, certificates and documents that such other things as the Stockholders’ Representative deems necessary or appropriate in connection advisable with respect to this Agreement and the consummation of Escrow Agreement. The Parent and Merger Sub shall have the transactions contemplated absolute right and authority to rely upon the acts taken or omitted to be taken by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed Stockholders’ Representative on behalf of the Stockholders that Approving Stockholders, and the Parent shall have no duty to inquire as to the acts and omissions of the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating Representative. Each Approving Stockholder has acknowledged and agreed that (i) all deliveries by the Parent, including, without limitation, any payment, to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled deliveries to the Stockholders, (ii) the Parent shall not have any liability with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon respect to any action aspect of the distribution or communication of such deliveries between the Stockholders’ Representative and any Stockholder and (iii) any disclosure made to the Stockholders’ Representative by or on behalf of the Parent shall be deemed to be a disclosure made to each Stockholder. Each Approving Stockholder has agreed that any payment made by or on behalf of the Parent to the Stockholders’ Representative on any Stockholder’s behalf (including, without limitation, payments under this Agreement or the Escrow Agreement) shall be deemed a direct payment to such Stockholder, and such Stockholder shall have no recourse to the Parent in all matters referred the event that such payment is not delivered to hereinsuch Stockholder by the Stockholders’ Representative for any reason. If In the event each of ▇▇. ▇▇▇▇▇▇▇ resignsand ▇▇. ▇▇▇▇▇▇▇▇▇ refuses to, dies or is otherwise unable to serve no longer capable of, serving as the Stockholders’ RepresentativeRepresentative hereunder, the Approving Stockholders shall promptly appoint a successor Stockholders’ Representative who shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior reasonably acceptable to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Parent and shall thereafter be a successor Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacityhereunder, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause serve until such successor is duly appointed and qualified to be done by virtue of her appointment as act hereunder.
(b) The Approving Stockholders shall indemnify, defend and hold harmless the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on from and against any and all of the matters set forth in this Agreement in the manner loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and third party expenses which the Stockholders’ Representative believes to be in the best interest may suffer or incur by reason of the Stockholders and consistent with the obligations under this Agreementany action, but claim or proceeding brought against the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 relating in connection with the performance of her obligations in accordance with the provisions of any way to this Agreement, except for the Escrow Agreement or any of the foregoing arising out of transaction to which this Agreement relates, unless such losses, liabilities, costs damages and expenses shall have been finally adjudicated to have resulted from the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation misconduct or substitution gross negligence 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Visant Corp)
Stockholders’ Representative. The Stockholders hereby (a) By virtue of the adoption of this Agreement and/or the cancellation by a Former Holder of Company Options or Company Warrants in exchange for Merger Consideration, Option Consideration or Warrant Consideration pursuant to this Agreement, the Former Holders irrevocably nominate, constitute and appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ as the agent and true and lawful agent and attorney-in-fact of the Former Holders (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place take any and stead of the Stockholders with respect all actions and make any and all decisions required or permitted to the surrender of the stock certificates owned be taken or made by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in under this Agreement, including the power to compromise any indemnity claim on behalf exercise of the Stockholders right to: (i) give and receive notices and communications under this Agreement; (ii) authorize set-off against Contingent Payments in satisfaction of claims for indemnification made by Parent under Section 7; (iii) object to transact matters claims for indemnification made by Parent under Section 7; (iv) agree to, negotiate, enter into settlements and compromises of litigation;
2.4.2 and comply with court orders with respect to execute claims for indemnification made by Parent under Section 7 or disputes regarding Section 1.7; and deliver (v) take all ancillary agreements, certificates and documents that actions necessary or appropriate in the good faith judgment of the Stockholders’ Representative deems necessary or appropriate in connection with for the consummation accomplishment of the transactions contemplated foregoing. The power of attorney granted in this Section 8.1 is coupled with an interest and is irrevocable, may be delegated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary and shall survive the death or appropriate in her sole discretion relating to the subject matter incapacity of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this AgreementFormer Holder. The appointment identity of the Stockholders’ Representative may be changed, and a successor Stockholders’ Representative may be appointed, from time to time (including in the event of the resignation or the death, disability or other incapacity of the Stockholders’ Representative) by Former Holders with a majority in interest of the rights to any Contingent Payments, and any such successor shall succeed the Stockholders’ Representative as Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representative. From and after the Effective Time, a decision, act, consent or instruction of the Stockholders’ Representative shall be deemed coupled with an interest final, binding and shall be irrevocable, conclusive upon each Former Holder and Parent, Federal and ATS the Parent may conclusively and absolutely rely, without inquiry, rely upon any action decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each Former Holder. Parent and Surviving Corporation are hereby relieved from any liability to any Person for any acts done by Stockholders’ Representative and any acts done by Parent or Surviving Corporation in accordance with any such decision, act, consent or instruction of the Stockholders’ Representative. Each Former Holder hereby agrees to receive correspondence from the Stockholders’ Representative, including in electronic form.
(b) The Stockholders’ Representative shall not be liable for any liability, loss, damage, penalty, fine, cost or expense incurred due to the acts or omissions of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies the absence of gross negligence or is otherwise unable to serve as bad faith on the part of the Stockholders’ RepresentativeRepresentative arising out of or in connection with the acceptance or administration of his duties or the exercise of his rights hereunder (it being understood that any act done or omitted pursuant to the advice of counsel, informed of all relevant facts, shall be conclusive evidence of such good faith). The Former Holders shall indemnify and hold the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If harmless against any individual Stockholders should die liability, loss, damage, penalty, fine, cost or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken expense incurred by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death without gross negligence or incapacity, termination or other event had not occurred, regardless bad faith on the part of whether or not the Stockholders’ Representative and arising out of or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent connection with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss acceptance or damages the Stockholders may suffer by the performance by the Stockholders’ Representative administration of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her his duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by entitled to recover, from the Stockholders fromReserve Amount, and indemnified and/or set-off against any loss or damages arising out of or in connection with the performance of her obligations in accordance with the provisions of this AgreementContingent Payment, except for any of the foregoing arising out of the willful violation of the law out-of-pocket costs and expenses incurred by the Stockholders’ Representative in connection with actions taken by the Stockholders’ Representative pursuant to the terms of her this Agreement (including the hiring of legal counsel and the incurring of legal fees and costs), without the requirement of any consent or approval by Parent or any other Person.
(c) At any time that the Stockholders’ Representative or Former Holders with a majority in interest of the rights to any Contingent Payments determines that it is no longer necessary for it to retain the entire Reserve Amount and that all or a portion of the Reserve Amount should be distributed to Former Holders, then the Stockholders’ Representative shall (i) deliver to Parent and the Paying Agent a Contingent Allocation Certificate and (ii) deliver to Parent (for further deposit with the Paying Agent or payroll agent) the Reserve Amount or such portion thereof to be so distributed by the Paying Agent and the payroll agent. Within ten Business Days of the receipt of such Contingent Allocation Certificate and the Reserve Amount or portion thereof, Parent shall direct the Paying Agent to pay, within ten Business Days of such direction, the amounts set forth in such Contingent Allocation Certificate to the Persons specified in such Contingent Allocation Certificate and direct the payroll agent to promptly pay such amount to the Persons to receive such amount as specified in the Contingent Allocation Certificate, after deducting applicable withholding.
(d) Notwithstanding anything to the contrary contained in this Agreement, any information provided to the Stockholders’ Representative under this Agreement shall be maintained as confidential and not disclosed by the Stockholders’ Representative or used for any purpose not contemplated by the purpose for which it was disclosed to the Stockholders’ Representative; provided however, that, in connection with performing its duties hereunder. pursuant to this Agreement, the Stockholders’ Representative may from time to time provide such information in summary form to Former Holders and their Affiliates who were represented on the board of directors of the Company immediately prior to the Effective Time provided that such Former Holders agree to keep all such information confidential and not disclose such information to any other Person.
(e) The foregoing indemnity Stockholders’ Representative and Company agree that the terms under which the Stockholders’ Representative shall survive be engaged to represent the resignation Former Holders in connection with this Agreement and the transactions contemplated hereby shall (i) be set forth in a written agreement to be entered into prior to the Closing among the Stockholders’ Representative and certain Former Holders, (ii) not include the Company as a party to such agreement, and (iii) not contravene or substitution negate any of the Stockholders’ Representative. Notwithstanding anything ’s obligations to the contrary herein, the Stockholders’ Representative shall have no liability Parent or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Surviving Corporation hereunder.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint 16.1 ▇▇. ▇▇▇▇▇ confirms that each SNIH Stockholder has signed a Letter of Transmittal in the form attached as Exhibit D prior to the execution and delivery of this Agreement pursuant to which each SNIH Stockholder hereby has appointed ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the true Stockholders’ Representative and lawful as agent and attorney-in-fact (the “Stockholders’ Representative”) for and on behalf of the Stockholders each SNIH Stockholder, with full power powers of substitution substitution, to act in the namegive and receive notices and communications, place to agree to, negotiate, enter into settlements and stead compromises of, and demand dispute resolution and comply with orders of the Stockholders arbitrators, courts, tribunals or other Governmental Bodies and awards of arbitrators, courts, tribunals or other Governmental Bodies with respect to any claims or other matters that may arise under this Agreement or the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreementother ancillary transaction documents, 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 take all such further acts and things, actions and execute all such documents as necessary or appropriate in the good faith discretion of the Stockholders’ Representative shall deem necessary or appropriate in connection with for the accomplishment of the transactions contemplated by this AgreementAgreement and the other ancillary transactions, including, without limitation, the power:
2.4.1 (a) to act for the Stockholders agree with regard Buyer and Merger Subsidiary with respect to matters pertaining to indemnification referred to any matter or thing required by or deemed necessary by Stockholders’ Representative in connection with this Agreement, including without limitation any amendments to this Agreement;
(b) to receive and hold the power Merger Consideration and any other amounts payable pursuant to compromise any indemnity claim on behalf this Agreement and to distribute the same to the SNIH Stockholders;
(c) to establish an account to hold a reasonable portion of the Stockholders Merger Consideration and to transact matters use such portion of litigationthe Merger Consideration for out-of-pocket costs and expenses in connection herewith;
2.4.2 (d) to execute and deliver any and all ancillary other agreements, certificates documents and documents that other papers which the Stockholders’ Representative deems necessary or appropriate in connection with this Agreement or the consummation Escrow Agreement, or any of the transactions contemplated hereby or thereby;
(e) to terminate, amend, waive or interpret any provision of this Agreement or the Escrow Agreement;
(f) to act for each SNIH Stockholder and all SNIH Stockholders with regard to the indemnification matters referred to in this Agreement, including, without limitation, the power to compromise or settle any claim on behalf of such SNIH Stockholder subject to obtaining the consent of Thrivent, which shall not be unreasonably withheld;
(g) to retain attorneys, accountants and other professionals to provide services to the Stockholders’ Representative in fulfillment of his obligations under this Agreement and as otherwise deemed appropriate in connection with the Closing of the transactions contemplated by this Agreement;Agreement or related matters arising thereafter; and
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (h) to do or refrain from doing any further act or deed on behalf of the Stockholders that each SNIH Stockholder which the Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such SNIH Stockholder could do if personally present; and.
2.4.5 to receive service of process 16.2 Notwithstanding the foregoing or anything else in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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 authority to defend a breach or obligation alleged breach by a SNIH Stockholder of any representation, warranty or covenant of this Agreement, as to which such SNIH Stockholder is solely liable or potentially liable, and such SNIH Stockholder shall have the sole authority to defend against any such claim.
16.3 No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for his services.
16.4 Neither the Stockholders’ Representative nor any of his agents or employees shall be liable to any Parent Indemnified Party otherwise thanSNIH Stockholder of 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, willful misconduct or fraud. The Stockholders’ Representative may consult with legal counsel, independent public accountants or other experts selected by him and shall not be liable for any action taken or omitted to be taken in good faith by him in accordance with the advice of such counsel, accounts or experts.
16.5 In the Letter of Transmital, each SNIH Stockholder hereby agrees to indemnify and hold the Stockholders’ Representative harmless from any and all liability, loss, cost, damage or expense (including attorneys’ fees) reasonably incurred or suffered as a result of the performance of his duties under this Agreement, except such that arises from the gross negligence or willful misconduct or fraud of the Stockholders’ Representative.
16.6 A decision, act, consent or instruction of the Stockholders’ Representative shall constitute a decision of all SNIH Stockholders and shall be final, binding and conclusive upon each SNIH Stockholder. Stockholder’s Representative shall promptly give written notices to Thrivent, within three (3) Business Days, of any decision, consent given, instructions given or actions taken as a Stockholder’s Representative in accordance with the notice procedures of Section 13 to an address provided by Thrivent.
16.7 Upon the eighteen (18) month anniversary of the Effective Date, the Stockholders Representative shall distribute the remaining portion, if any, of the $500,000 expense fund in Section 2.1(d) to the SNIH Stockholders in accordance with their SNIH Ownership Proportion and instructions set forth on Exhibit B. Additionally, Stockholders Representative shall promptly pay to the respective SNIH Stockholders the allocable amounts due to each such stockholder upon any deposit into Stockholders Representative account of the payments contemplated in Section 2.3(a) (next to last sentence), 10A(a) (last sentence), and only 11.4 which are due or to the extent of, her individual liability as a Stockholder as set forth in Section 6.3.be paid to those SNIH Stockholders
Appears in 1 contract
Sources: Merger Agreement (GEE Group Inc.)
Stockholders’ Representative. (a) The Stockholders Stockholders’ Representative is hereby appoint ▇▇▇▇▇▇▇ constituted and appointed by SPC for and on behalf of the SPC Stockholders, with full and unqualified power to delegate to one or more Persons the authority granted to it hereunder, to act as the true and lawful each of their agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders fact, with full power of substitution substitution, to act in take all actions after the name, place Effective Time with Excluded Liabilities and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms Excluded Taxes and provisions indemnification claims under Article IX of this Agreement and the Escrow Agreement, on their individual and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreementcollective behalf, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or and appropriate in connection with the transactions contemplated by under this Agreement and the Escrow Agreement, including, without limitation, the power:
2.4.1 (1) to act perform all of the duties and obligations of the Stockholders’ Representative concerning indemnification claims under Article IX of this Agreement and the Escrow Agreement and to execute, deliver and perform all documents contemplated herein or therein by the Stockholders’ Representative;
(2) to distribute to the SPC Stockholders any amounts to be released or paid to the Stockholders’ Representative (for the Stockholders with regard benefit of the SPC Stockholders) pursuant to matters pertaining the terms of the Escrow Agreement and other escrows related to indemnification referred the Cable and the Kansas City Transactions, unless the Stockholders’ Representative concludes that existing funds at its disposal are not sufficient to meet known or threatened claims under Section 9.2(c)(3), in which case the Stockholders’ Representative may reserve and retain some or all of such funds as it determines in the exercise of its good faith business judgment;
(3) to perform all duties of the Indemnified Party (if the Stockholders’ Representative or any SPC Stockholder is the Indemnified Party) or to perform all the duties of the Indemnifying Party (if the Stockholders’ Representative is the Indemnifying Party), as set forth in Article IX of this Agreement, including, without limitation, prosecution of all Proceedings and the prosecution or conduct of the defense of any claims or actions described herein, and the compromise and settlement of any such claims or actions, including the power making of any payment required thereby;
(4) to perform all duties and resolve all matters in connection with the Escrow Agreement, including, without limitation, the prosecution or conduct of the defense of any matter or Claim (as defined therein), and the compromise and settlement of any indemnity claim such matter or Claim, including the making of any payment required thereby;
(5) to hire counsel and other professionals and third parties on behalf of himself and/or the SPC Stockholders to represent the interests of the Stockholders’ Representative and/or the SPC Stockholders in connection with this Agreement and the Escrow Agreement, and the right to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that incur such other expenses as the Stockholders’ Representative deems necessary or appropriate in connection with to protect the consummation interests of himself and the transactions contemplated by this AgreementSPC Stockholders and to carry out the terms thereof and hereof;
2.4.3 (6) to act as the paying agent give and receive all notices and communications to receive funds and give receipts for funds, including in respect of be given or received concerning any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter indemnification claim under Article IX of this Agreement or the Escrow Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims indemnification claim under Article IX of this Agreement or any Claim under the Escrow Agreement; and
(7) to take any other action concerning any indemnification claim under Article IX of this Agreement or the Escrow Agreement and the transactions contemplated herein and therein as the Stockholders’ Representative in his sole and absolute discretion deems appropriate. The appointment of Notwithstanding anything to the contrary contained herein, (i) the Stockholders’ Representative shall be deemed coupled have no duties or responsibilities under this Agreement except for those expressly set forth herein, (ii) no implied covenants, functions, responsibilities, duties, obligations or liabilities on behalf of any SPC Stockholder shall otherwise exist against or with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of respect to the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve its capacity as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If such and (iii) any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by claim against the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this Agreement, except for Agreement by any of Person shall be satisfied solely from the foregoing arising out of the willful violation of the law assets owned or held by the Stockholders’ Representative in trust or otherwise and amounts held under the Escrow Agreement, and no trustee, member, stockholder, director, officer or employee of her 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 any personal liability or obligation with respect to any Parent Indemnified Party such claim. All decisions and acts by the Stockholders’ Representative shall be binding upon all of the SPC Stockholders and no SPC Stockholder shall have the right to object, dissent, protest or otherwise thancontest the same.
(b) Acquiror shall be entitled to deal exclusively with the Stockholders’ Representative on all matters relating to Article IX hereof and the Escrow Agreement, and only shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any SPC Stockholder by the extent ofStockholders’ Representative, her individual liability and on any other action taken or purported to be taken on behalf of the SPC Stockholders by the Stockholders’ Representative, as fully binding upon such SPC Stockholders.
(c) As provided in the Written Consent, the approval by the SPC Stockholders of the Merger thereunder includes the approval of the terms of the provision of this Section 2.15, including, without limitation, the appointment of the Stockholders’ Representative.
(d) The SPC Stockholders formerly holding more than 50% of the SPC Stock as of Closing (a Stockholder as set forth “Majority in Section 6.3Interest”) may replace the Stockholders’ Representative and designate a successor Stockholders’ Representative.
(e) The Stockholders’ Representative is authorized and empowered to construe this Agreement and the Escrow Agreement and its construction shall be conclusive and binding upon all of the SPC Stockholders.
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) Each Indemnifying Stockholder by acceptance of Indemnifying Stockholder’s portion of the aggregate Per Share Merger Consideration hereby appoint ▇▇▇▇▇▇▇ appoints Shareholder Representative Services LLC as the true and lawful “Stockholders’ Representative” as of the Closing to act as the representative, agent and attorney-in-fact (the “Stockholders’ Representative”) of the Indemnifying Stockholders for all purposes in connection with this Agreement and the agreements ancillary hereto with the full power of substitution (i) to act resolve all questions, disputes, conflicts and controversies concerning Losses as provided in the nameArticle VII, place (ii) to execute and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreemententer into, 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 Indemnifying Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do take all actions thereunder for and on their behalf, including but not limited the authorization of payments from the Adjustment Holdback Fund or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 Indemnity Holdback Fund, (iii) to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any negotiate and/or settle all claims under this Agreement. The appointment of , (iv) direct the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and payment from Ultimate Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative Parent or the Surviving Corporation shall have received notice of Corporation, or on any such deathPerson’s behalf, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS monies payable to the Indemnifying Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this Agreement, except for (v) to otherwise take such actions (or refrain from taking actions) and execute such documents (including any modifications, waivers or amendments thereto) on the Indemnifying Stockholder’s behalf in connection with this Agreement as the Stockholders’ Representative, in its sole discretion, deems proper, (vi) to authorize the release and/or distribution of any or all of funds received from the Adjustment Holdback Fund or the Indemnity Holdback Fund and (vii) to perform all of the foregoing arising out functions of the willful violation Stockholders’ Representative under this Agreement. Each of Ultimate Parent, Parent or the Surviving Corporation is entitled to rely on the acts and agreements of the law Stockholders’ Representative as the acts and agreements of the Indemnifying Stockholders. The Stockholders’ Representative shall be entitled to retain counsel and to incur such reasonable expenses (including court costs and reasonable attorney’s fees and expenses) as the Stockholders’ Representative deems to be reasonably necessary or appropriate in connection with its performance of its obligations under this Agreement, and all such fees and expenses incurred by the Stockholders’ Representative shall be borne pro rata by the Indemnifying Stockholders based upon their respective Pro Rata Portions.
(b) The Indemnifying Stockholders, severally on a pro rata basis based upon their respective Pro Rata Portions, 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 her duties hereunder. The foregoing indemnity shall survive 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 resignation Stockholders’ Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or substitution incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Representative. Notwithstanding anything to the contrary herein, the Stockholders’ Representative will reimburse the Indemnifying Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Indemnifying Stockholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Stockholders’ Reserve and (ii) any other funds that become payable to the Indemnifying Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Indemnifying Stockholders; provided, that while this section allows the Stockholders’ Representative to be paid from the aforementioned sources of funds, this does not relieve the Indemnifying Stockholders 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 Indemnifying Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Indemnifying Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this section. The agreements in this Section 8.16(b) and Section 8.16(e) shall survive termination of this Agreement, the Closing and the resignation or removal of the Stockholders’ Representative.
(c) Each of Ultimate Parent, Parent and Merger Sub shall be fully protected in dealing with the Stockholders’ Representative under this Agreement and may rely upon the authority of the Stockholders’ Representative to act on behalf of the Indemnifying Stockholders for all purposes under this Agreement and shall have no liability for or obligation in connection with or resulting from any such reliance. Any payment by or on behalf of Ultimate Parent, Parent, Merger Sub or the Surviving Corporation to any Parent Indemnified Party otherwise than, and only the Exchange Agent (or the Stockholders’ Representative with respect to the Stockholders’ Reserve) to the extent ofauthorized under this Agreement shall be considered a payment by Ultimate Parent, her individual Parent, Merger Sub or the Surviving Corporation, as the case may be, to the Indemnifying Stockholders. The appointment of the Stockholders’ Representative is coupled with an interest and shall be irrevocable by any Indemnifying Stockholder 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.
(d) The Stockholders’ Representative may resign from its capacity as Stockholders’ Representative at any time by written notice delivered to Parent and the Indemnifying Stockholders. If there is a vacancy at any time in the position of Stockholders’ Representative for any reason, such vacancy shall be filled by an Indemnifying Stockholders’ vote in the form of a writing executed by the Indemnifying Stockholders entitled to a majority of the number of votes referred to in the next sentence. In such event, each Indemnifying Stockholder shall have a number of votes equal to such Indemnifying Stockholder’s Pro Rata Portion multiplied by 100 and the authorization of a majority of such number of votes shall be binding on all of the Indemnifying Stockholders and shall constitute the authorization of the Indemnifying Stockholders.
(e) The Stockholders’ Representative shall not be liable to Ultimate Parent, Parent, Merger Sub or the Surviving Corporation or the Indemnifying Stockholders in its capacity as the Stockholders’ Representative for any liability of an Indemnifying Stockholder or for any error of judgment, or any act done or step taken or omitted by it believed by it to be 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 and any agreements ancillary hereto except in the case of gross negligence or willful misconduct by it. The Stockholders’ Representative may seek the advice of reputable legal counsel in the event of any dispute or question as a Stockholder to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability in its capacity as set forth Stockholders’ Representative to the Indemnifying Stockholders and shall be fully protected with respect to any action taken, omitted or suffered by it in Section 6.3good faith in accordance with the opinion of such counsel.
Appears in 1 contract
Sources: Merger Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Stockholders’ Representative. The (a) In order to efficiently administer (i) the determination and payment of the Closing Payment and Purchase Price, as provided in Subsections 1.04 through 1.06 and (ii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyers or the Company pursuant to Section 6 hereof, the Stockholders hereby appoint designate ▇▇ ▇▇▇▇▇▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) The Stockholders hereby constitute the Stockholders' Representative as their true and lawful agent attorney in fact for purposes of, and attorney-in-fact with full authority on the behalf of each of them: (i) to make all decisions relating to the “Stockholders’ Representative”) determination and payment of the Stockholders Closing Payment and Purchase Price, as provided in Subsections 1.04 through 1.06, (ii) to take all action necessary in connection with full power the defense and/or settlement of substitution to act in the name, place and stead of any claims for which the Stockholders with respect may be required to indemnify the surrender of Buyers or the stock certificates owned Company pursuant to Section 6 hereof, (iii) to give and receive all notices required to be given to or by the Stockholders to Federal in accordance with under this Agreement or the terms and provisions of this Escrow Agreement, and (iv) to act take any and all additional action as is contemplated to be taken by the Stockholders' Representative or on behalf of the Stockholders by the terms of this Agreement or the Escrow Agreement.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, ▇▇▇▇ ▇'▇▇▇▇▇ (or, if such individual is unwilling or unable to serve in any litigation or arbitration involving such capacity, another individual designated by Prudential Private Equity Investors III, L.P. ("Prudential") shall be deemed to be the Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Representative within the scope of the authorization granted in this Subsection 1.07, act as including, without limitation, any agreement between the paying agent on behalf Stockholders' Representative and the Buyers relating to the determination of the Purchase Price and Closing Payment or the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyers and/or the Company pursuant to Section 6 hereof, shall be binding upon all of the Stockholders, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(1) the Buyers shall be able to rely conclusively on the instructions and thingsdecisions of the Stockholders' Representative as to the determination of the Purchase Price and Closing Payment in accordance with Subsections 1.04 through 1.06 and the settlement of any claims for indemnification by the Buyers or the Company pursuant to Section 6 hereof or any other actions required to be taken by the Stockholders' Representative hereunder, and execute all such documents as no party hereunder shall have any cause of action against the Buyers for any action taken by the Buyers in reliance upon the instructions or decisions of the Stockholders’ Representative ' Representative;
(2) the provisions of this Subsection 1.07 are independent and severable, are irrevocable and coupled with an interest and shall deem necessary be enforceable notwithstanding any rights or appropriate remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(3) remedies available at law for any breach of the provisions of this Subsection 1.07 are inadequate; therefore, the Buyers and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either of the Buyers or the Company brings an action to enforce the provisions of this Subsection 1.07; and
(4) the provisions of this Subsection 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' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Stockholders' Representative, including, without limitation, all fees, costs and expenses or indemnification obligations incurred by the power:
2.4.1 to act for Stockholders' Representative under the Stockholders with regard to matters pertaining to indemnification referred to in this Escrow Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing paid by the Stockholders who held a majority in proportion to each Stockholder's Pro Rata Share of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder Purchase Price as set forth in Section 6.3.on Schedule I attached hereto. ----------
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) In order to efficiently administer (i) the defense or settlement of any claims for which any of the Veeco Indemnitees may be entitled to indemnification pursuant to Article VIII hereof and (ii) any other matter arising under or relating to the Escrow Agreement after the Closing, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as is hereby appointed to represent the true and lawful agent and attorney-in-fact interests of the Company Stockholders after the Effective Date (the “"STOCKHOLDERS' REPRESENTATIVE").
(b) The Stockholders’ Representative”) of the Stockholders with full power of substitution ' Representative shall be authorized to act take all actions which he deems appropriate in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance connection with the terms matters described in Section 2.08(a), including, without limitation, to execute and provisions of this Agreement, and to act deliver the Escrow Agreement on behalf of the Stockholders and to perform the transactions contemplated thereby.
(c) In the event that the Stockholders' Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, then the remaining Stockholders who held not less than a majority of the outstanding Company Common Stock held by all such remaining Stockholders as of the Effective Time, calculated on a fully-diluted basis, shall designate a replacement within 10 days of such death, inability to perform or resignation, and shall notify all Stockholders in any litigation or arbitration involving this Agreement, act as writing of such replacement within 10 days from the paying agent on behalf designation of such individual.
(d) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts otherwise contest the same.
(i) Each of the Veeco Indemnitees shall be entitled to rely conclusively on the instructions and thingsdecisions of the Stockholders' Representative as to any matter described in Section 2.08(a), and execute all no party hereto shall have any cause of action against any of the Veeco Indemnitees for any action taken by any such documents as Veeco Indemnitee 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 Merger Agreement, except for fraud.
(iii) The provisions of this Section 2.08 are independent and severable, are irrevocable and coupled with an interest and shall deem necessary be enforceable notwithstanding any rights or appropriate remedies that any Stockholder may have in connection with the transactions contemplated by this Merger Agreement.
(iv) The provisions of this Section 2.08 shall be binding upon the executors, includingheirs, without limitationlegal representatives, successors and assigns of each of the power:
2.4.1 Stockholders, and any references in this Merger Agreement to act for a Stockholder or the Stockholders with regard shall mean and include the successors to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf rights of each of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The Upon approval of the Merger, the Stockholders hereby shall have been deemed to appoint ▇▇▇▇ ▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock Stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 (i) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 (ii) to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 (iii) to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Merger Price, and to do or refrain from doing the actions further described in the Paying Agent AgreementProcedures;
2.4.4 (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 her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement Procedures as fully and completely as the Stockholders could do if personally present; and
2.4.5 (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 ATS 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 who which held a majority of the ATS Company Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 2.8 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS the Surviving Corporation to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her his appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her his duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her his duties under this Agreement. The Stockholders’ Representative and her 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 her 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 her 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, her his individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders Company, on behalf of the Company Stockholders, hereby appoint ▇▇▇▇▇▇▇ irrevocably constitutes and appoints in accordance with Section 4(f) of the Securityholders Agreement, Carlyle CIM Agent, L.L.C. (the “Stockholders’ Representative”) as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of each of the Stockholders Company Stockholders, with full power powers of substitution to act individually in the name, place and stead of each of the Company Stockholders with respect to the surrender of transactions contemplated by this Agreement and the stock certificates owned by other Transaction Documents, as the Stockholders same may be from time to Federal in accordance with the terms and provisions of this Agreementtime amended, 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, individually do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Stockholders’ Representative he shall deem necessary or appropriate in connection with any of the transactions contemplated by this Agreement, includinghereby and thereby.
(b) Buyer shall be entitled to rely exclusively, without limitationany independent verification or investigation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise upon any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that instruction or other communication given by the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall not be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon liable in any manner whatsoever for any action of the Stockholders’ Representative taken or not taken in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as reliance upon the Stockholders’ Representative. Any payments made, at the successor Stockholders’ Representative shall be designated in writing Representative’s request and instruction, by the Stockholders who held a majority of the ATS Common Stock immediately prior Buyer to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the terms of this Section 2.4 Agreement shall be fully discharge Buyer from any liability to any Company Stockholder in connection with such payment, as valid fully and completely as if such death or incapacitypayment had been made directly to such Company Stockholder. Buyer hereby agrees, termination or other event had not occurredand shall be permitted, regardless to accept and rely on the actions of whether or not the Stockholders’ Representative as if it were the action of a Company Stockholder or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Company Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. 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 shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Representative.
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) Each Stockholder, by execution of this Agreement, irrevocably constitutes and appoints Thermo Development, Inc. (which, by execution of this Agreement, hereby appoint ▇▇▇▇▇▇▇ accepts such appointment) to act as the true Stockholders’ Representative and lawful as the sole agent and attorney-in-fact (the “Stockholders’ Representative”) for and on behalf of the Stockholders (in their capacity as such), with full power of substitution substitution, to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act take all actions on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power (i) to compromise any indemnity claim execute and deliver on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreementsany amendment, certificates and documents that the Stockholders’ Representative deems necessary consent or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of waiver under this Agreement and the Paying Agent Agreement as fully other Transaction Documents, (ii) to assert, and completely as to agree to resolution of, all claims and disputes hereunder or thereunder, including under Article 8 hereof, (iii) to retain legal counsel and other professional services, at the Stockholders could do if personally present; and
2.4.5 to receive service expense of process the Stockholders, in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties this Agreement and the other Transaction Documents, (iv) to execute and deliver on the Stockholders’ behalf all documents and instruments which may be 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 keep the Stockholders reasonably informed with respect to actions of the Stockholders’ Representative pursuant to the authority granted to the Stockholders’ Representative under this AgreementAgreement which actions have a material impact on the amounts payable to the Stockholders.
(b) The power of attorney granted in this Section 8.09 is coupled with an interest and is irrevocable, other than loss may be delegated by the Stockholders’ Representative and shall survive the death, dissolution or damage arising from willful violation incapacity of each Stockholder. Such appointment and powers may be changed by the Stockholders having a majority in interest of the law 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 the Stockholders’ Representative for all purposes hereunder, and any such successor shall succeed the Stockholders’ Representative as the Stockholders’ Representative hereunder. Neither the removal of, nor the appointment of a successor to, the Stockholders’ Representative shall affect in any manner the validity or enforceability of any actions taken or agreements, understandings or commitments entered into by the prior Stockholders’ Representative, which shall continue to be effective and binding on the Stockholders. For the avoidance of doubt, any compromise or settlement of any matter by the Stockholders’ Representative hereunder shall be binding on, and fully enforceable against, all Stockholders. 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 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 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 (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 change of address of such Stockholder.
(d) Without limiting the generality of the foregoing and for the avoidance of doubt, for purposes of Article 8, if any Stockholder Indemnified Party is seeking indemnification as the Indemnified Party hereunder, or 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 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 the performance by the Stockholders’ Representative of her duties under its obligations hereunder, have been duly authorized by all necessary corporate action on the part of the Stockholders’ Representative;
(iii) this Agreement. The Agreement has been duly executed and delivered by the Stockholders’ Representative and her heirs this Agreement constitutes a legally valid and personal or legal representatives shall be held harmless by binding obligation of the Stockholders fromStockholders’ Representative, and indemnified enforceable against any loss or damages arising out of or in connection with the performance of her obligations 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 provisions of this Agreement, except for any execution and delivery of the foregoing arising out of Transaction Documents to which it is (or will be) a party by the willful violation of Stockholders’ Representative, and the law performance by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive its obligations thereunder do not and will not (A) conflict with or result in a violation of the resignation or substitution 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 the Stockholders’ Representative.
(f) Notwithstanding anything to the contrary hereinin this Agreement, the representations and warranties of the Stockholders’ Representative shall have no liability survive the Closing indefinitely or obligation 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 any Parent Indemnified Party otherwise than, and only to be bound by the extent of, her individual liability as a Stockholder as provisions set forth in this Section 6.38.09.
Appears in 1 contract
Sources: Merger Agreement (Globalstar, Inc.)
Stockholders’ Representative. (a) The Stockholders hereby appoint ▇▇▇▇▇▇▇ Letters of Transmittal shall provide that any Stockholder or Optionholder receiving consideration pursuant to this Agreement shall have agreed upon execution and delivery of the Letters of Transmittal, that the Stockholders' Representative, will be appointed as the true and lawful agent and attorneysuch person's Attorney-in-fact Fact and representative, with the obligations, power and authority (the “Stockholders’ Representative”i) of the Stockholders with full power of substitution to act do any and all things and to execute any and all documents or other papers, in the each such person's name, place and stead of stead, in any way in which each such person could do if personally present, in connection with this Agreement and the Stockholders with respect transactions contemplated by this Agreement (the "Transactions"), (ii) to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with amend, cancel or extend, or waive the terms of, this Agreement or any ancillary agreement and provisions of this Agreement, and (iii) to act on behalf of Bionics Trust with respect to any claims (including the Stockholders settlement thereof) made by Parent for indemnification pursuant to Article VII or any dispute arising under Section 2.11 ; provided, however, that without the written consent of the Earn Out Recipients who collectively hold more than 50% of the Earn Out Rights at such time, the Stockholders' Representative shall not take or approve any of the matters listed on Exhibit H; provided, further, that if the Stockholders' Representative has not completed a required solicitation of consent and notified Parent in writing of the results of such solicitation within 30 business days of written request by Parent seeking the consent of the Earn Out Recipients with respect to any litigation or arbitration involving this Agreementof the matters listed on Exhibit H, act as such consent shall be deemed not to have been provided. The solicitation of any consent referred to in the paying agent on behalf preceding sentence shall be conducted by and at the expense of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement' Representative. The appointment Principal Stockholders, each Stockholder and Optionholder that executes and delivers a Letter of the Stockholders’ Representative Transmittal and each Earn Out Recipient shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in bound by all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action actions taken by the Stockholders’ ' Representative pursuant to consistent with this Section 2.4 shall be 2.12(a) in his, her or their capacity as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or ' Representative, and neither Parent nor the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required be liable to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit any of the Stockholders and shall discharge or Earn Out Recipients for any action taken or omitted to be taken by it in full all notice requirements of Parent, Federal such reliance or the Surviving Corporation for any action taken or omitted to the Stockholders with respect thereto. The Stockholders hereby confirm all that be taken by the Stockholders’ Representative shall do or cause to be done by virtue ' Representative.
(b) Any of her appointment as 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 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 in the best interest of the Stockholders and consistent with the obligations under this AgreementEarn Out Rights; provided however, but the Stockholders’ Representative that such resignation or removal shall not be responsible effective until such time as a successor to such individual shall have been elected. In the Stockholders 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 any such other agreement, instrument or document, excepting only responsibility for any loss act or damages the Stockholders may suffer by the performance by failure to act which represents gross negligence or willful misconduct. Each Earn Out Recipient and Bionics Trust shall indemnify the Stockholders’ ' Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages 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 performance of her obligations in accordance with the provisions of this Agreement, except for any acts or omissions of the foregoing arising out of the willful violation of the law by the Stockholders’ ' Representative of her duties hereunder. The foregoing indemnity shall survive Stockholders' Representative shall, at the resignation or substitution expense of the Stockholders’ Representative. Notwithstanding anything Earn Out Recipients and Bionics Trust, be entitled to the contrary hereinengage such counsel, the Stockholders’ Representative experts and other agents and consultants as he or she shall have no liability deem necessary in connection with exercising his or obligation to any Parent Indemnified Party otherwise than, her powers and only to the extent of, performing his or her individual liability as a Stockholder as set forth in Section 6.3function hereunder.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders hereby Indemnifying Persons, by approving this Agreement and the transactions contemplated hereby, irrevocably agree to appoint and constitute ▇▇▇▇▇ ▇▇▇▇▇▇▇ (and by the execution of this Agreement as the true Stockholders’ Representative, ▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby accept of his appointment) for and on behalf of the Indemnifying Persons as the true, exclusive and lawful agent agents and attorney-in-fact for and on behalf of each such Indemnifying Person to act: (the “i) as Stockholders’ Representative”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) of the Stockholders with full power of substitution to act Stockholders’ Representative shall deem necessary, appropriate or advisable in connection with, or related to, this Agreement, the Paying Agent Agreement and the Escrow Agent Agreement and the transactions contemplated hereby and thereby; (ii) in the name, place and stead of each Company Stockholders (A) in connection with the Stockholders with respect to Merger and the surrender of the stock certificates owned transactions contemplated by the Stockholders to Federal this Agreement and in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders (B) in any litigation or arbitration proceeding involving this Agreement, act as the paying agent on behalf of the Stockholdersto do, do or refrain from doing doing, all such further acts and things, necessary, appropriate or advisable in connection with any of the foregoing, including execute and execute deliver all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated 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, including, without limitation, the power:
2.4.1 to act for Paying Agent Agreement or the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim Escrow Agent Agreement on behalf of the Stockholders Indemnifying Persons and comply with orders of courts and awards of arbitrators with respect to transact matters such claims, (v) to agree to, negotiate, enter into and provide amendments and supplements to and waivers in respect of litigation;
2.4.2 to execute this Agreement, the Paying Agent Agreement and deliver all ancillary agreementsthe Escrow Agent Agreement, certificates (vi) retain legal counsel, accountants, consultants, advisors and documents that the Stockholders’ Representative deems necessary or appropriate other experts, and incur any other reasonable expenses, in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 all matters and things set forth or necessary with respect to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully Ancillary Agreements and completely as the Stockholders could do if personally presenttransactions contemplated hereby and thereby; and
2.4.5 (vii) apply the Rep Reimbursement Amount to receive service the payment of process in connection with any claims under this Agreement. The appointment (or reimbursement of the Stockholders’ Representative shall be deemed coupled with an interest for) expenses and shall be irrevocable, liabilities which the Stockholders’ Representative may incur pursuant to this Agreement; and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action (viii) 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 all matters referred to herein. If ▇▇▇▇▇▇▇ resignssuch case, dies or is otherwise unable to serve as in the case of death, disability, or inability of the Stockholders’ Representative, the successor 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 and all decisions, 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 all the Company Stockholders and shall be final, binding and conclusive upon each and every Company Stockholder, and the Parent shall be entitled to rely upon any such decision, act, consent or 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 designated in writing 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 who held a majority 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 ATS Common Stock immediately prior 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 Closingpayment of such expense is made or provided for in a manner satisfactory to him. If 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 individual Stockholders should die member thereof upon demand for all reasonable expenses, disbursements and advances incurred or become incapacitatedmade by the Stockholders’ Representative in accordance with any of the provisions of this Agreement, if any trust the Paying Agent Agreement, the Escrow Agent Agreement or estate should terminate or if any other such event should occurdocuments executed in connection herewith or therewith, any action taken 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 Section 2.4 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 as valid as if such death 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 incapacitysuffered by him in reliance upon any notice, termination direction, instruction, consent, statement or other event had not occurreddocument believed by him, regardless of whether her or not it to be genuine and 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 or may rely on the Surviving Corporation shall have received notice advice of such deathcounsel, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to and the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation will not be liable to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do Company Stockholder for anything done, omitted or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance suffered by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by based on such advice. Each Company Stockholder hereby releases the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against from any loss (including any losses incurred, as such losses are incurred), liability or damages expense for, arising out of or in connection with the performance acceptance or administration of her obligations in accordance with the provisions of this Agreement, except for 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 foregoing arising out legal costs and expenses of the willful violation of the law by 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 her 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. The foregoing indemnity In addition, and without derogating from the generality of the foregoing, the Indemnifying Persons shall survive severally and jointly, indemnify the resignation Stockholders’ Representative and hold him harmless against any loss (including any losses incurred, as such losses are incurred), liability or substitution 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. Notwithstanding anything ’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 contrary hereinCompany 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 have no constitute a decision of all of the Indemnifying Persons and shall be final, binding and conclusive upon each and every Indemnifying Person, and the other Parties 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 Indemnifying Person. Each of Parent and Buyer is hereby relieved from any liability or obligation to any Parent Indemnified Party otherwise thanPerson for any acts done by them in accordance with such decision, and only to act, consent or instruction of the extent of, her individual liability as a Stockholder as set forth in Section 6.3Stockholders’ Representative.
Appears in 1 contract
Sources: Merger Agreement (Attunity LTD)
Stockholders’ Representative. The Stockholders By virtue of the adoption of this Agreement and the transactions contemplated hereby, 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 Securityholder shall be deemed to have appointed the designation of, and hereby appoint ▇▇▇▇▇▇▇ designates, Shareholder Representative Services LLC as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”Representative for all purposes in connection with this Agreement and any agreement ancillary hereto, including (a) to give and receive notices and communications to Parent for any purpose under this Agreement and the Additional Agreements; (b) to agree to, negotiate, enter into settlements and compromises of the Stockholders and demand arbitration and comply with full power orders of substitution to act in the name, place courts and stead awards of the Stockholders arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the surrender Closing, other disputes arising under or related to this Agreement; (c) to enter into and deliver the Escrow Agreement on behalf of each of the stock certificates owned Company Securityholders; (d) to authorize or object to delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by the Stockholders to Federal Parent in accordance with the terms and provisions of this the Escrow Agreement, and ; (e) to act on behalf of Company Securityholders in accordance with the Stockholders in any litigation or arbitration involving this provisions of the Agreement, act as the paying agent on behalf of securities described herein and any other document or instrument executed in connection with the Stockholders, do or refrain from doing Agreement and the Merger; and (f) to take all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem actions necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf judgment of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit accomplishment of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretoforegoing. The Stockholders hereby confirm all Stockholders’ Representative may resign at any time. Such agency may be changed by the Company Securityholders from time to time upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may not be removed unless holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time. No bond shall do be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or cause to be done omission by virtue of her appointment as the Stockholders’ Representative of in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall act not be liable for any action or omission pursuant to the Stockholders on all advice of the matters set forth in this Agreement in the manner counsel. The Company Securityholders will indemnify, defend and hold harmless the Stockholders’ Representative believes to be in the best interest of the Stockholders from and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages 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 performance of her obligations this Agreement and any agreement ancillary hereto, in accordance with each case as such Representative Loss is suffered or incurred; provided, that in the provisions of this Agreement, except for event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the foregoing arising out Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful violation of misconduct. If not paid directly to the law Stockholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund, and (ii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Securityholders; provided that, while this provision allows the Stockholders’ Representative to be paid from the aforementioned sources of her duties hereunderfunds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Company Securityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 14.14. The foregoing indemnity shall indemnities will survive the Closing, the resignation or substitution removal of the Stockholders’ Representative or the termination of this Agreement. Upon the Closing, the Company will wire $150,000 (the “Expense Fund”) to the Stockholders’ Representative, which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative. Notwithstanding anything to the contrary herein’s responsibilities, the Stockholders’ Representative shall have no liability or obligation to will deliver any Parent Indemnified Party otherwise than, and only remaining balance of the Expense Fund to the extent ofCompany. For Tax purposes, her individual liability the Expense Fund will be treated as a Stockholder as having been received and voluntarily set forth in Section 6.3aside by the Company at the time of Closing.
Appears in 1 contract
Stockholders’ Representative. 6.01 The Stockholders Stockholders, and each of them, hereby appoint Andrew Edwards (the "Stockholders' ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ve") as the true their agent to (i) execute and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of deliver this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim Escrow Agreement on behalf of the Stockholders and to transact matters represent, act for and on behalf of, and bind each of litigation;
2.4.2 the Stockholders in the performance of all of their obligations arising from or relating to execute this Escrow Agreement, including, without limitation (a) the execution and deliver all ancillary agreementsdelivery of any document, certificates and documents that certificate or agreement required under this Escrow Agreement to be delivered by the Stockholders’ Representative deems necessary or appropriate in connection with ; (b) the consummation negotiation and settlement of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including claims of Vizacom in respect of the Escrowed Property and for indemnification pursuant to Article VIII of the Merger Agreement and the making of any adjustments objection to such claims; and (c) the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf representation of the Stockholders that at any arbitration or litigation in respect of the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement foregoing; (ii) give and the Paying Agent Agreement as fully receive notices and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process under or pursuant to this Escrow Agreement; and (iii) to represent, act for, and bind each of the Stockholders in connection with any claims under the performance of all of their obligations arising from or related to this Escrow Agreement and the indemnification provisions of Article VIII of the Merger Agreement. The appointment of Stockholders' Representative hereby accepts such appointment.
6.02 In the event that the Stockholders’ ' Representative shall die, become incapacitated, resign or otherwise by unable to fulfill his duties hereunder, a successor Stockholders' Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing selected by the Stockholders who held entitled to a majority of the ATS Common Stock immediately prior Escrowed Property (to the Closingextent not subject to any claim under Article VIII of the Agreement) as Merger soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occurreason, any action taken such Stockholders' Representative may be so removed or replaced by the Stockholders’ Representative pursuant Stockholders entitled to this Section 2.4 shall be as valid as if receive a majority of such death Escrowed Property. Any decision, act, consent or incapacity, termination or other event had not occurred, regardless instruction of whether or not the Stockholders’ ' Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit constitute a decision of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that be conclusive and binding upon the Stockholders’ Representative shall do , and Vizacom and the Escrow Agent may rely upon any such decision, act, consent or cause to be done by virtue of her appointment as the Stockholders’ Representative instruction of the Stockholders. The Stockholders’ ' Representative shall act for as being the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreementdecision, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss act, consent or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution instruction 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Stockholders’ Representative. The (a) In order 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 appoint ▇▇▇▇▇▇▇ designates Hisanori Aoyama as the true and lawful agent and attorney-in-fact 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 Stockholders with full power 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 additional action as is contemplated, permitted or required by the terms of substitution this Agreement to act in the name, place and stead 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 position, the Majority Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal (or their respective successors, heirs or executors) shall, in accordance with the terms 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 provisions 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, and the Stockholder agrees to act on behalf all of the Stockholders in any litigation or arbitration involving this Agreement, act as following matters:
(i) the paying agent Buyer and its affiliates shall be able to rely conclusively on behalf the instructions and decisions of the Stockholders, do or refrain from doing all such further acts and things' Representative as to any of the matters described in this Section 1.5, and execute all such documents as 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) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement;
(iii) the provisions of this Section 1.5 are independent and severable, are irrevocable and coupled with an interest and shall be 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 1.5 would be inadequate;
(v) the provisions of this Section 1.5 shall be binding upon the executors, includingheirs, without limitationlegal representatives and successors of the Stockholder, and any references in this Agreement to the Stockholder shall include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the power:laws of descent and distribution or otherwise; and
2.4.1 (vi) the Stockholders' Representative shall have the authority to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim execute and deliver on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary Stockholder any agreements, certificates and documents that the Stockholders’ Representative deems instruments contemplated by this Agreement or necessary or appropriate in connection with to facilitate the consummation Closing.
(f) All fees of the transactions contemplated and expenses incurred by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ ' Representative shall be deemed coupled with an interest and shall be irrevocablepaid by the Selling Stockholders, and Parentthe Stockholder shall pay the amount of such fees and expenses reasonably allocated to him, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies her or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken it by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Rand▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If Rand▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve or resigns, dies or is otherwise unable to serve as Jame▇ ▇. ▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders’ ' Representative, the successor Stockholders’ Representative "). The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action and all actions taken by the Stockholders’ ' Representative on their behalf. As among themselves, the Stockholders agree that all decisions shall be made by mutual decision.
(b) UniCapital and Newco shall be entitled to rely upon any communication or writing given or executed by the Stockholders' Representative. All communications or writings to be sent to Stockholders pursuant to this Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Section 10 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the best interest of such Stockholder and the Stockholders other Stockholder hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) Notwithstanding the foregoing, the Stockholder Representative shall promptly inform the other Stockholders of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be done, given or taken by such Stockholder Representative. As between themselves, the Stockholders for any loss or damages the Stockholders may suffer by the performance by agree that the Stockholders’ ' Representative of her duties under this Agreementshall only take action, other than loss or damage arising refrain from willful violation taking action, upon consultation with and the prior approval of the law by the other Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Unicapital Corp)
Stockholders’ Representative. The Stockholders (a) Lily Pond Investments, Inc. is hereby appoint ▇▇▇▇▇▇▇ appointed, effective as of the true and lawful Effective Time, as agent and attorney-in-fact representative (in such capacities, the “Stockholders’ Representative”) ), of the Stockholders with full and shall have exclusive power of substitution to act in the nameand authority, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do to give and receive notices and communications to or refrain from doing all such further acts and thingsParent, and execute all such documents as Merger Sub and/or the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by Escrow Agent relating to this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise Escrow Agreement or any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions and other matters contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments hereby or thereby (except to the Purchase Price, and to do extent that this Agreement or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do Escrow Agreement expressly contemplates that any such notice or refrain from doing any further act communication shall be given or deed on behalf of received by the Stockholders that the Stockholders’ Representative deems necessary individually).
(b) A decision, act, consent or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment instruction of the Stockholders’ Representative shall be deemed coupled with an interest constitute a decision of all of the Stockholders and shall be irrevocablefinal, binding and conclusive upon each Stockholder and the Escrow Agent, and Parent, Federal and ATS Parent may conclusively and absolutely rely, without inquiry, rely upon any action decision, act, consent or instruction of the Stockholders’ Representative as being the decision, act, consent or instruction of each and every Stockholder. The Escrow Agent and Parent are hereby relieved from any liability to any person for any acts done by them in all matters referred to herein. If ▇▇▇▇▇▇▇ resignsaccordance with such decision, dies act, consent or is otherwise unable to serve as instruction of the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. .
(c) The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable to the Stockholders any Stockholder for any loss act done or damages the Stockholders may suffer by the performance by omitted hereunder as the Stockholders’ Representative while acting in good faith, and any act done or omitted pursuant to the advice of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives counsel shall be held harmless by the Stockholders from, and indemnified against any loss or damages arising out conclusive evidence of or in connection with the performance of her 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 of her duties hereundersuch good faith. The foregoing indemnity No bond shall survive the resignation or substitution be required of the Stockholders’ Representative. Notwithstanding anything to the contrary herein, and the Stockholders’ Representative shall have receive no liability compensation for its services.
(d) If Lily Pond Investments, Inc. incurs any out-of-pocket expenses (including, without limitation, any reasonable fees and expenses of counsel) in its capacity as Stockholders’ Representative under this Agreement or obligation the Escrow Agreement or in connection with any of the transactions contemplated hereby or thereby, such out-of-pocket expenses shall be paid from, or reimbursed through deduction from, the Holdback Amount in accordance with Section 2.2(c) hereof and the Escrow Agreement, prior to making any Parent Indemnified Party otherwise than, and only payments or distributions pursuant to the extent of, her individual liability as a Stockholder as set forth in Section 6.32.2(c)(ii) or 2.2(c)(iii) hereof.
Appears in 1 contract
Stockholders’ Representative. (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 nominate, constitute and appoint ▇▇▇▇▇▇▇ The Canopy Group, Inc. as the Stockholders’ Representative and the agent and true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders Non-Dissenting Stockholders, with full power of substitution substitution, to act in the name, place and stead of the Non-Dissenting Stockholders with respect for purposes of executing any documents and taking any actions that the Stockholders’ Representative may, in its sole discretion, determine to the surrender of the stock certificates owned by the Stockholders be necessary, desirable or appropriate in all matters relating to Federal in accordance with the terms and provisions 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 virtue of the approval of the Merger and the adoption of this Agreement) grant to act the Stockholders’ Representative full authority to execute, deliver, acknowledge, certify and file on behalf of the Non-Dissenting Stockholders (in the name of any litigation or arbitration involving this Agreement, act as the paying agent on behalf all of the Stockholders, do Non-Dissenting Stockholders or refrain from doing otherwise) any and all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary may, in its sole discretion, determine to be necessary, desirable or appropriate 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 the consummation of the transactions contemplated by this Agreement;
2.4.3 Contemplated Transactions, each Indemnitee shall be entitled to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that deal exclusively with the Stockholders’ Representative deems necessary or appropriate in her sole discretion on all matters relating to the subject matter of this Agreement Section 10 and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Escrow Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest , and shall be irrevocable, and Parent, Federal and ATS may entitled to rely conclusively and absolutely rely, (without inquiry, upon further evidence of any action kind whatsoever) on any document executed or purported to be executed on behalf of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken Non-Dissenting Stockholder by the Stockholders’ Representative pursuant with respect to this matters relating to Section 2.4 shall 10 or the Escrow Agreement, and on any other action taken or purported to be as valid as if such death or incapacity, termination or other event had not occurred, regardless taken on behalf of whether or not any Non-Dissenting Stockholder by the Stockholders’ Representative with respect to matters relating to Section 10 or the Surviving Corporation shall have received notice of Escrow Agreement, as fully binding upon such death, incapacity, termination or other eventNon-Dissenting Stockholder. All notices required to be made or delivered by Parent, Federal or ATS Notwithstanding anything to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth contrary contained 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 AgreementSection 11.1, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.the
Appears in 1 contract
Stockholders’ Representative. (a) The Company Stockholders, by the approval and adoption of this Agreement, appoint, authorize and empower the Stockholders’ Representative to act on behalf of each Company Stockholder in connection with, and to facilitate the consummation of the transactions under, this Agreement, which shall include the power and authority (i) to make all decisions relating to the determination of any adjustments to the Purchase Price and the determination of EBITDA, (ii) to take all action necessary in connection with the defense and/or settlement of any claims for which the Company Stockholders hereby appoint may be required to indemnify Parent pursuant to Article 10 hereof, (iii) to give and receive all notices required to be given under the Agreement, (iv) to execute and deliver the Escrow Agreement, (v) to execute and deliver such amendments to this Agreement as the Stockholders’ Representative, in his reasonable discretion, may deem necessary or desirable to give effect to the intentions of this Agreement, and (vi) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders by the terms of this Agreement.
(b) In the event of the death or permanent disability of the Stockholders’ Representative, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall serve as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) . In the event of the Stockholders with full power death or permanent disability of substitution to act in the name▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, place and stead a successor Stockholders’ Representative shall be elected by a majority vote of the Stockholders Company Stockholders, with respect each such Company Stockholder (or his, her or its successors or assigns) to be given a vote equal to the surrender number of votes represented by the shares of Company Stock held by such Company Stockholder immediately prior to the Closing. Each successor Stockholders’ Representative shall have all of the stock certificates owned power, authority, rights and privileges conferred by this Agreement and the Escrow Agreement upon the original Stockholders’ Representative.
(c) All decisions and actions by the Stockholders’ Representative, including, without limitation, any agreement between the Stockholders’ Representative and Parent relating to the determination of any adjustments to the Purchase Price and the determination of EBITDA, the defense or settlement of any claims for which the Company Stockholders may be required to Federal in accordance with indemnify Parent pursuant to Article 10 hereof or the terms amendment of this Agreement shall be binding upon all of the Company Stockholders, and provisions no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(d) By their adoption and approval of this Agreement, the Company Stockholders agree that:
(i) Parent shall be able to rely conclusively on the instructions and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf decisions of the Stockholders’ Representative as to the determination of any adjustments to the Purchase Price and the determination of EBITDA, do the settlement of any claims for indemnification by Parent pursuant to Article 10 hereof, the amendment of this Agreement or refrain from doing all such further acts and thingsany other actions required to be taken by the Stockholders’ Representative hereunder, and execute no Party hereunder shall have any cause of action against Parent or the Stockholders’ Representative for any action taken by Parent in reliance upon the instructions or decisions of the Stockholders’ Representative;
(ii) all such documents as actions, decisions and instructions of the Stockholders’ Representative shall deem necessary be conclusive and binding upon all of the Company Stockholders, and no Company Stockholder shall have any cause of action against the Stockholders’ Representative for any action taken, decision made or appropriate instruction given by the Stockholders’ Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders’ Representative;
(iii) the provisions of this Section 2.07 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:;
2.4.1 to act (iv) remedies available at law for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf breach of the Stockholders and to transact matters provisions of litigation;
2.4.2 to execute and deliver all ancillary agreementsthis Section 2.07 are inadequate; therefore, certificates and documents that Parent, the Stockholders’ Representative deems necessary or appropriate in connection with and the consummation Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if any such Party brings an action to enforce the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter provisions of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally presentSection 2.07; and
2.4.5 (v) the provisions of this Section 2.07 shall be binding upon the executors, heirs, legal representatives and successors of each Company Stockholder, and any references in this Agreement to receive service of process in connection with any claims under this Agreement. The appointment of a Company Stockholder or the Company Stockholders shall mean and include the successors to the Company Stockholders’ rights hereunder, whether pursuant to testamentary disposition, Applicable Laws relating to descent and distribution or otherwise.
(e) All fees and expenses incurred by the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing paid by the Company Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders accordance with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholderstheir respective Proportionate Shares. The Stockholders’ Representative shall act for may, in his sole discretion, offset such amount of fees and expenses against any amounts payable to the Company Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ as (a) Each Stockholder, by the true execution of this Agreement (and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) each other Seller upon execution of such other instrument of similar import entered into by such other Seller), agrees that the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and Representative shall be authorized to act on behalf of such Sellers for all purposes of this Agreement with the full and exclusive power and authority to represent and bind such Seller with respect to all matters arising under and pursuant to this Agreement and the transactions contemplated hereby (including the taking by the Stockholders in Representative of any litigation and all actions and the making of any decisions required or arbitration involving this Agreementpermitted to be taken) on such Seller's behalf (a) to consummate the transactions contemplated herein, act as the paying agent on behalf of the Stockholders, do or refrain from doing all (b) to pay such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate Seller's expenses incurred in connection with the transactions contemplated by negotiation and performance of this AgreementAgreement (whether incurred on or after the date hereof), including(c) to disburse any funds received hereunder to such Seller and each other Seller, without limitation(d) to endorse and deliver any certificates or instruments representing the Shares, the power:
2.4.1 to act for Options and the Stockholders with regard to matters pertaining to indemnification referred to in this AgreementClass B Warrants and execute such further instruments of assignment as the Purchaser shall reasonably request, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 (e) to execute and deliver on behalf of such Seller any amendment or waiver hereto, (f) to take all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary other actions to be taken by or appropriate on behalf of such 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) 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 claims, and (iii) to take all actions necessary in the consummation judgment of the Stockholders Representative for the accomplishment of the foregoing.
(c) Neither the Stockholders Representative nor any agent employed by it shall incur any liability to any Seller by virtue of the failure or refusal of the Stockholders Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of its other duties hereunder, except for actions or omissions constituting fraud or bad faith.
(d) In all matters in which action by the Stockholders Representative is required or permitted, the Purchaser shall be entitled to rely on any and all action taken by the Stockholders Representative under this Agreement;Agreement without any liability to, or obligation to inquire of, any of the Sellers.
2.4.3 (e) Notwithstanding anything herein to act as the paying agent and to receive funds and give receipts for fundscontrary, including (i) in no event shall the Stockholders Representative (A) take any action in respect of any adjustments to of the Purchase Priceforegoing that does not, and to do or refrain from doing in all respects, treat each Seller in a manner which is pro rata (based on its ownership of the actions further described Company in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement aggregate, including all Shares, Options and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocableWarrants, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing held by the Stockholders who held a majority of the ATS Common Stock such Seller immediately prior to the Closing. If any individual Stockholders should die Closing calculated on a fully diluted basis) or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in (B) amend this Agreement in the any manner the Stockholders’ Representative believes whatsoever to be expand, increase or alter any Seller's liability and (ii) in the best interest of the Stockholders and consistent no event shall a Seller's liability with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible respect to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out 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 the ownership of the willful violation of Company in the law aggregate, including all Shares, Options and Warrants, held by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything such Seller immediately prior to the contrary hereinClosing calculated on a fully-diluted basis, the Stockholders’ Representative shall have no of any liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3.for such amounts. (signatures on next page)
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) By executing and delivering this Agreement, each Stockholder hereby appoint irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the his true and lawful agent and attorney-in-fact (the “"Stockholders’ ' Representative”") of the Stockholders with full power of substitution to act in the his name, place and stead of the Stockholders ▇▇▇▇▇ with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the all transactions contemplated by, and all terms and provisions of of, this Agreement, and to act on his behalf of the Stockholders in any litigation dispute or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, 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 absolute discretion, including, without limitation, the power:
2.4.1 (i) to waive any condition to the obligations of the Company and the Stockholders to consummate the transactions contemplated by this Agreement;
(ii) to act for the Stockholders each Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders any Stockholder and to transact matters of litigation;
2.4.2 (iii) to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate 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;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 (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 her sole discretion each Stockholder relating to the subject matter of this Agreement and the Paying Agent Agreement Agreement, as fully and completely as the Stockholders each such Stockholder could do if personally present; and
2.4.5 (v) to receive service all notices on behalf of process 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 shall be irrevocable, and Parent, Federal Buyer and ATS 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. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made Buyer to the Stockholders’ ' Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders and shall discharge in full all constitute 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 her appointment as the Stockholders’ Representative .
(c) All actions, decisions and instructions of the Stockholders. The ' Representative taken, made or given pursuant to the authority granted to the Stockholders’ ' Representative pursuant to paragraph (a) above shall act for be conclusive and binding upon the Stockholders, and the Stockholders on all shall not have the right to object, dissent, protest or otherwise contest the same.
(d) The provisions of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best Section 1.12 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest surviving death or disability of any Stockholder, granted by each of the Stockholders and consistent with the obligations under this Agreement, but to the Stockholders’ ' Representative and shall not be responsible to binding upon the Stockholders for any loss or damages the Stockholders may suffer by the performance by executors, heirs, legal representatives, successors and assigns of each of the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation .
(a) Buyer shall be entitled to rely conclusively on the instructions and decisions of the law by the Stockholders’ ' Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal as to any actions required or legal representatives shall permitted to be held harmless taken by the Stockholders fromor the Stockholders' Representative hereunder, and indemnified no party hereunder shall have any cause of action against any loss or damages arising out of or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except Buyer for any of action taken in good faith by Buyer in reliance upon the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation instructions or substitution decisions 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Upon APP Stockholder Approval, each of the Escrow Participants will be deemed to have irrevocably appointed ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., as the its, his or her true and lawful agent and attorney-in-fact and agent (the “Stockholders’ Representative”) of the Stockholders ), with full power of substitution or resubstitution, to act in the name, place solely and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act exclusively on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders Escrow Participants with regard to matters pertaining to (i) the indemnification of the Delaware Indemnified Parties referred to in this AgreementArticle IX, including the power to compromise any indemnity claim Claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Pricesuch Escrow Participant, and to do (ii) all matters under the Escrow Agreement or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; andEscrow Shares.
2.4.5 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 Parent, Federal FHC Wisconsin and ATS any other Person 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 By their appointment of the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby Escrow Participants thereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her its appointment as the Stockholders’ Representative representative of the StockholdersEscrow Participants hereunder. The Stockholders’ Representative shall act for the Stockholders Escrow Participants on all of the matters set forth in this Article IX and the Escrow Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders Escrow Participants and consistent with this Article IX and the obligations under this Escrow Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders any Escrow Participant for any loss or damages which the Stockholders Escrow Participant may suffer by the performance (including any damages arising out of the Stockholders’ Representative’s negligence) of the Stockholders’ Representative’s duties hereunder, other than damages arising from willful violation of applicable Law or willful misconduct in the performance of such duties hereunder. The Stockholders’ Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement or the Escrow Agreement, and no implied covenants, functions, responsibilities, duties or liabilities shall be read into this Agreement or shall otherwise exist against the Stockholders’ Representative. The Stockholders’ Representative shall pay all of the expenses incurred by the Stockholders’ Representative of her in performing its duties under this Agreementhereunder. The Stockholders’ Representative shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by any Escrow Participant or FHC Wisconsin, or any other than loss or damage arising from willful violation of the law evidence deemed by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall to be held harmless by the Stockholders fromreliable, and indemnified against any loss or damages arising out of or in connection with the performance of her 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 of her 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 be entitled to any Parent Indemnified Party otherwise than, and only to act on the extent of, her individual liability as a Stockholder as set forth in advice of counsel selected by it.
(c) The Stockholders’ Representative is an intended beneficiary of this Section 6.39.6.
Appears in 1 contract
Sources: Merger Agreement (Female Health Co)
Stockholders’ Representative. The Stockholders hereby appoint (a) Each holder of Partner Common Stock and each Beneficial Owner, by signing this Agreement, designates ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇▇▇▇ ▇▇▇▇▇ or, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns▇▇▇▇▇ ▇▇▇▇▇ is unable or unwilling to serve, dies or is otherwise unable ▇▇▇▇▇ ▇▇▇▇ to serve as be the Stockholders’ Representative, ' Representative for purposes of this Agreement. The Stockholders and the successor Stockholders’ Representative Beneficial Owners shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action and all actions taken by the Stockholders’ ' Representative on their behalf.
(b) USFloral and Newco shall be entitled to rely upon any communication or writings given or executed by the Stockholders' Representative. All communications or writings to be sent to Stockholders pursuant to this Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the best interest of the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to the Stockholders for terminated by any loss act of any Stockholder, by operation of law, whether by such Stockholder's death or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, any other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. The Stockholders hereby appoint ▇▇(a) ▇▇▇▇▇ & Company, L.P. shall be constituted and appointed as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place for and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving Sellers to give and receive notices and communications made pursuant to this Agreement, act as the paying agent to pay on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments Sellers expenses incidental to the Purchase Price, preparation hereof and to do or refrain from doing the actions further described in carrying out by the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter Sellers of this Agreement and the Paying Agent Agreement as fully and completely as consummation by the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment Sellers of the Stockholders’ Representative shall be deemed coupled with an interest transactions contemplated hereby, to participate in the Closing on behalf of each of the Sellers, to agree to, negotiate, enter into settlements and shall be irrevocablecompromises of, and Parentdemand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit accomplishment of the Stockholders and shall discharge in full all foregoing. Such agency may be changed from time to time upon not less than two Business Days’ prior written notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretoBuyer by the Sellers who as of the date of this Agreement owned a majority in interest of the Shares. The Stockholders hereby confirm all that No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall do receive no compensation for his services. Notices or cause communications to be done by virtue of her appointment as or from the Stockholders’ Representative shall constitute notice to or from each of the Stockholders. The Stockholders’ Representative shall act Sellers for the Stockholders on all purposes 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, but the .
(b) The Stockholders’ Representative shall not be responsible liable for any 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 Stockholders for any loss or damages the Stockholders may suffer by the performance by advice of counsel shall be 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 her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 acceptance or administration of his/her obligations in accordance with duties hereunder.
(c) The execution and delivery by any Seller of this Agreement shall be deemed to be approval by such Seller of the terms of the provisions of this Agreement, except for any Section 11.15 and of the foregoing arising out appointment of the willful violation Stockholders’ Representative.
(d) A decision, act, consent or instruction of the law by the Stockholders’ Representative shall constitute a decision of her duties hereunderall 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 foregoing indemnity shall survive the resignation Buyer is hereby relieved from any obligation to any Person for any acts done by it in accordance with such decision, act, consent or substitution instruction of the Stockholders’ Representative. Notwithstanding anything to Except for a notice regarding the contrary herein, change of the Stockholders’ Representative (as contemplated by Section 11.15(a)), the Buyer shall have no liability be entitled to disregard any notices or obligation to any Parent Indemnified Party otherwise thancommunications given or made by the Sellers unless given or made through the Stockholders’ Representative. Each Seller releases, remises, and only 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 ofbased in whole or in part on Buyer’s reliance on the decisions, her individual liability acts, consents and instructions of the Stockholders’ Representative as a Stockholder as being the final, binding and conclusive act of all the Sellers.
(e) Any successor Stockholders’ Representative appointed in accordance with the Stockholders’ Representative Agreement shall be 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 Section 6.3.Exhibit F hereto as the Buyer, Stockholders’ Representative and Escrow Agent may approve
Appears in 1 contract
Sources: Share Purchase Agreement
Stockholders’ Representative. The (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 appoint designate ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact 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 with full power to consummate the transactions contemplated hereby, or the defense and/or settlement of substitution to act in the name, place and stead of any claims for which the Stockholders with respect may be required to indemnify Open Solutions or the surrender of Buyer pursuant to Section 7 hereof, (iii) to give and receive all notices required to be given under the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and (iv) to act take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders in any litigation or arbitration involving by the terms of this Agreement.
(c) In the event that the Stockholders' Representative dies, act becomes unable to perform his responsibilities hereunder or resigns from such position, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall fill such vacancy and such substituted representative shall be deemed to 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 paying agent on behalf Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Representative, including, without limitation, any agreement between the Stockholders' Representative and Open Solutions relating to the determination of the Net Current Assets or the Adjusted Purchase Price, or the defense or settlement of any claims for which the Stockholders may be required to indemnify Open Solutions or the Buyer pursuant to Section 7 hereof, shall be binding upon all of the Stockholders, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) Open Solutions and thingsthe 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 the Buyer pursuant to Section 7 hereof or any other actions required to be taken by the Stockholders' Representative hereunder, and execute all such documents as 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) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 1.07 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders (iv) remedies available at law for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative breach of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this AgreementSection 1.07 are inadequate; therefore, except for Open Solutions and the Buyer shall be entitled to 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' rights hereunder, whether pursuant to testamentary disposition, the laws of the foregoing arising out of the willful violation of the law descent and distribution or otherwise.
(f) Any fees and expenses incurred by the Stockholders’ Representative of her 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 be paid by the Stockholders in proportion to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder their ownership of Shares as set forth in Section 6.3on Schedule I attached hereto.
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) Each Stockholder hereby appoint ▇▇▇▇▇▇▇ designates Stockholders’ Representative as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and agent to act on behalf of the Stockholders such Stockholder in any amendment of or litigation or arbitration dispute involving this Agreement, act as the paying agent on behalf of the Stockholders, Agreement or any other Transaction Documents and to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Stockholders’ Representative shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreement, including, without limitation, including the power:
2.4.1 (i) to act for take all action necessary or desirable to consummate the Stockholders with regard to matters pertaining to indemnification referred to in transactions contemplated by this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 (ii) to negotiate, execute and deliver all ancillary agreements, certificates certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents that the Stockholders’ Representative deems necessary required or appropriate 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 claims 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;
2.4.3 (vii) to act as the paying agent give and receive all notices and communications to be given or received under this Agreement and to receive funds and give receipts for funds, including service of process in respect of connection with the any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent claims under this Agreement;
2.4.4 (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 taken by the Stockholders and to do or refrain from doing any further act or deed on behalf of the Stockholders that the which Stockholders’ Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders such Stockholder could do if personally present; and.
2.4.5 to receive service of process in connection with (b) Stockholders’ Representative will not be liable for any claims 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 appointment of the Stockholders’ Representative shall will also be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, fully protected in relying upon any action of the 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 in all matters referred for, and to herein. If ▇▇▇▇▇▇▇ resignshold Stockholders’ Representative harmless against, dies any loss, liability or is otherwise unable to serve as expense incurred without willful misconduct or bad faith on the part of Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 Stockholders’ Representative’s carrying out its duties under this Agreement, including costs and expenses of her obligations 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 provisions opinion of such counsel.
(d) Buyer shall have the right to rely upon all actions taken or omitted to be taken by Stockholders’ Representative pursuant to this Agreement, except for any all of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity which actions and omissions 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, her individual liability as a Stockholder as set forth in Section 6.3be legally binding upon each Stockholder.
Appears in 1 contract
Stockholders’ Representative. (a) In order to administer efficiently (i) the determination of the Adjustment Amount (as defined in Section 12.4 hereof), (ii) waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, (iii) the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 10 hereof, and (iv) any rights or obligations of the Stockholders pursuant to this Agreement or the Escrow Agreement, the Stockholders hereby designate Hisanori Aoyama as their representative (the "Stockholders' Representative").
(b) The Stockholders hereby appoint ▇▇▇▇▇▇▇ as authorize the true and lawful agent and attorney-in-fact Stockholders' Representative (i) to make all decisions relating to the “Stockholders’ Representative”determination of the Adjustment Amount, (ii) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders with full power to consummate the transactions contemplated hereby, or the defense and/or settlement of substitution to act in the name, place and stead of any claims for which the Stockholders with respect may be required to indemnify the surrender of Buyer or the stock certificates owned by the Stockholders Company pursuant to Federal in accordance with the terms Section 10 hereof, (iii) to give and provisions of receive all notices required to be given under this Agreement, and (iv) to act on behalf take any and all additional action as is contemplated, permitted or required by the terms of this Agreement or the Stockholders in any litigation Escrow Agreement to be taken by or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders.
(c) In the event that the Stockholders' Representative dies, do becomes unable to perform his responsibilities hereunder or refrain resigns from doing such position, Stockholders (or their respective successors, heirs or executors) holding, prior to the Closing, a majority of the Shares as set forth on Schedule I shall promptly select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders' Representative for all such further acts purposes of this Agreement.
(d) All decisions and thingsactions by the Stockholders' Representative, including, without limitation, any agreement between the Stockholders' Representative and the Buyer relating to the determination of the Adjustment Amount or the defense or settlement of any claims for which the 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, and execute all such documents as 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) the Buyer and the Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders’ ' Representative as to the determination of the Adjustment Amount, the settlement of any claims for indemnification by the Buyer or the Company pursuant to Section 10 hereof, the taking of any action pursuant to the Escrow Agreement or as to any other actions authorized to be taken by the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against the Buyer or the Parent for any action taken by the Buyer or the Parent in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement or the Escrow Agreement;
(iii) the provisions of this Section 1.6 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(iv) 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, includingheirs, without limitationlegal 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 Stockholder's or Stockholders' rights hereunder, whether pursuant to testamentary disposition, the power:laws of descent and distribution or otherwise; and
2.4.1 to act for (vi) the Stockholders with regard to matters pertaining to indemnification referred to in this AgreementStockholders' Representative shall have the right, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 authority to execute and deliver all ancillary on behalf of each Stockholder the Escrow Agreement and any other agreements, certificates and documents that the Stockholders’ Representative deems instruments contemplated by this Agreement or necessary or appropriate in connection with to facilitate the consummation of the transactions contemplated Closing.
(f) All fees and expenses incurred by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ ' Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing paid by the Stockholders who held a majority in proportion to their ownership of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder Shares as set forth in Section 6.3.on Schedule I.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Stockholders’ Representative. The Stockholders hereby appoint (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, the Stockholder Representative, is hereby appointed as the true and lawful agent and representative, attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders 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 Stockholders with respect to the surrender judgment of the stock certificates owned by Stockholder Representative for the Stockholders to Federal in accordance with accomplishment of the terms and provisions of this Agreement, and to act on behalf of the Stockholders each Stockholder in any amendment of or litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, Agreement or any Ancillary Agreements and to do or refrain from doing all such further acts and things, and to execute all such documents documents, as the Stockholders’ such Stockholder Representative shall deem necessary or appropriate in connection conjunction with any of the transactions contemplated by this Agreement, including, without limitation, including the power:
2.4.1 (i) to act for take all action necessary or desirable in connection with the Stockholders with regard waiver of any condition to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf obligations of the Stockholders to consummate the transactions contemplated by this Agreement and to transact matters of litigationthe Ancillary Agreements;
2.4.2 (ii) to negotiate, execute and deliver all ancillary agreementsstatements, certificates certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents that the Stockholders’ Representative deems necessary required or appropriate permitted to be given in connection with the consummation of the transactions contemplated by this AgreementAgreement (it being understood that a Stockholder shall execute and deliver any such documents which the Stockholder Representative agrees to execute);
2.4.3 (iii) to act as the paying agent give and receive all notices and communications to be given or received under this Agreement and to receive funds and give receipts for fundsservice of process in connection with the any claims under this Agreement, including service of process in respect of any adjustments connection with arbitration; and
(iv) to the Purchase Price, and to do or refrain from doing the take all actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that which the Stockholders’ Stockholder Representative deems necessary or appropriate in her his sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders a Company Stockholder could do if personally present; and.
2.4.5 (j) Notwithstanding the enumerated powers granted to receive service of process the Stockholder Representative in connection with any claims under this Agreement. The appointment Section 9.1(a) above, the Stockholder Representative shall not have the power to:
(i) waive the condition to the obligations of the Stockholders’ Stockholders to consummate the transactions set forth in Section 5.3(f);
(k) If the Stockholder Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise becomes unable to serve as the Stockholders’ Stockholder Representative, the successor Stockholders’ Representative such other Person or Persons as may be designated by him who shall be designated in writing by one of the Stockholders who held a holding the majority of the ATS Purchaser Common Stock immediately prior 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 Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by power and authority of the Stockholders’ Stockholder Representative pursuant to this Section 2.4 Agreement, except in the case of the Stockholder Representative's gross negligence, bad faith or willful misconduct. The Stockholder Representative shall be as valid as if such death or incapacityentitled to rely on the advice of counsel, termination public accountants or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required independent experts that it reasonably determines to be made experienced in the matter at issue, and will not be liable to any Stockholder for any action taken or delivered by Parent, Federal or ATS omitted to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge taken in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretogood faith based on such advice. The Stockholders hereby confirm all that will, severally and not jointly, indemnify (in accordance with their pro rata percentages) the Stockholders’ Stockholder Representative shall do or cause to be done by virtue from any losses arising out of her appointment its serving as the Stockholders’ Stockholder Representative of the Stockholders. The Stockholders’ Representative shall act hereunder, except for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages losses arising out of or caused by the Stockholder Representative's gross negligence, bad faith or willful misconduct. The Stockholder Representative is serving in connection with the performance his capacity as such solely for purposes of her obligations administrative convenience, and is not personally liable in accordance with the provisions of this Agreement, except such capacity for any of the foregoing arising out obligations of the willful violation Stockholders hereunder, and the Purchaser and the Company agree that they will not look to the personal assets of the law Stockholder Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Stockholders’ Representative of her 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 Stockholders hereunder except to the extent ofof the Stockholder Representative's gross negligence, her individual liability as a Stockholder as set forth in Section 6.3bad faith or willful misconduct.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) E▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as the true (such person and lawful agent and attorney-in-fact (any successor or successors being the “Stockholders’ Representative”) shall act as the representative of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this AgreementCompany Holders, and shall be authorized to act on behalf of the Stockholders in Company Holders and to take any litigation and all actions required 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 permitted to be taken by the Stockholders’ Representative shall deem necessary under this Agreement with respect to any claims (including the settlement thereof) made by a Parent Indemnitee or appropriate in connection with a Company Holder Indemnitee (as the transactions contemplated by this Agreement, case may be) for indemnification pursuant to Article VIII (including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including exercise of the power to compromise (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 compromises of, and comply with orders of courts with respect to any indemnity claim on behalf claims for indemnification and (iii) take all actions necessary in the judgment of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with for the consummation accomplishment of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion foregoing). In all matters relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of Article VIII, the Stockholders’ Representative shall be deemed coupled with an interest 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 irrevocableentitled to rely on all statements, representations, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action decisions of the Stockholders’ Representative.
(b) The Company Holders shall be bound by all actions taken by the Stockholders’ Representative in all matters referred to hereinhis, her or its capacity thereof, except for any action that conflicts with the limitations set forth in subsection (d) below. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor The Stockholders’ Representative shall be designated promptly, and in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior any event within five (5) business days, provide written notice to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, Company Holders of any action taken on behalf of them by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made authority delegated to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholdersunder this Section 10.13. The Stockholders’ Representative shall at all times act for the Stockholders on all of the matters set forth in this Agreement his, her or its capacity as Stockholders’ Representative in the a manner that the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with Company Holders. Neither the obligations 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, but except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not be responsible have any duty to ascertain or to inquire as to the Stockholders for performance or observance of any loss of the terms, covenants, or damages conditions of this Agreement.
(c) Each Company Holder shall indemnify and hold harmless and reimburse the Stockholders may suffer by the performance Stockholders’ Representative from and against such Company Holder’s ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders’ Representative arising out of her duties or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement, other than loss such liabilities, losses, damages, claims, costs or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified against any loss or damages expenses arising out of or in connection with the performance of her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of resulting from the Stockholders’ Representative. ’s gross negligence, bad faith or willful misconduct.
(d) Notwithstanding anything to the contrary herein, the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise thanis not authorized to, and only shall not, accept on behalf of any Company Holder any Merger Consideration to which such Company Holder is entitled under this Agreement and the extent ofStockholders’ Representative shall not in any manner exercise, her individual liability as 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 Holder unless the Stockholders’ Representative is expressly authorized to do so in a Stockholder as set forth in Section 6.3writing signed by such Company Holder.
Appears in 1 contract
Sources: Merger Agreement (VNUE, Inc.)
Stockholders’ Representative. The Stockholders (a) Loring Knoblauch is hereby appoint appointed as representative (the "Stockhold▇▇▇' ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies ive") for and on behalf of the holders of Company Capital Stock to take all actions necessary or is otherwise unable to serve as appropriate in the judgment of the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ ' Representative for the benefit accomplishment of the Stockholders and terms of this Agreement. No bond 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 her appointment as the Stockholders’ Representative required of the Stockholders' Representative and the Stockholders' Representative shall receive no compensation for his services. Notices of communications to or from the Stockholders' Representative shall constitute notice to or from each of the holders of the Company Capital Stock.
(b) The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ ' Representative shall not be responsible liable for any act done or omitted in such capacity while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the advise of counsel shall be conclusive evidence of such good faith. The Preferred Stockholders for any loss or damages the Stockholders may suffer by the performance by shall severally indemnify the Stockholders’ ' Representative of her duties under this Agreementand hold him harmless against any loss, other than loss liability or damage arising from willful violation expense incurred without gross negligence or bad faith on the part of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ ' Representative and her 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 acceptance or administration of her obligations his duties hereunder.
(c) Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision of all and shall be final, binding and conclusive upon every holder of Company Capital Stock and Agere may rely upon any such decision, act, consent or instruction. Agere is hereby relieved from any liability to any Person for acts done by it in accordance with the provisions of this Agreementsuch decision, except for any of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation act, consent or substitution instruction 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Agere Systems Inc)
Stockholders’ Representative. The Stockholders (a) In order to efficiently administer certain matters contemplated hereby appoint following the Closing, including any actions that the Stockholders’ Representative may, in its sole discretion, determine to be necessary, desirable or appropriate in connection with the matters set forth in Sections 1.10, 1.11 and 8, the Participating Securityholders, by the adoption of this Agreement, acceptance of consideration under this Agreement and/or the completion and execution of the Letters of Transmittal shall be deemed to have designated ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact representative of the Participating Securityholders (the “Stockholders’ Representative”).
(b) In the event the Stockholders’ Representative dies, becomes unable to perform his, her or its responsibilities hereunder or resigns from such position, the Participating Securityholders who hold at least a majority in interest of the Stockholders with full power Pro Rata Fractions at such time shall be authorized to and shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders’ Representative for all purposes of substitution to act in this Agreement and the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions documents delivered pursuant hereto.
(c) By their adoption of this Agreement, acceptance of consideration under this Agreement and/or the delivery of the Letter of Transmittal contemplated by Section 1.9, the Participating Securityholders shall be deemed to have agreed, in addition to the foregoing, that:
(i) the Stockholders’ Representative shall be appointed and constituted the true and lawful attorney-in-fact of each Participating 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 the Escrow Agreement and in general to do all things and to act perform all acts including, without limitation, executing and delivering any agreements, amendments, certificates, receipts, instructions, notices or instruments contemplated by or deemed advisable in connection with this Agreement or the Escrow Agreement and which shall be binding on each Participating Securityholder. The Stockholders’ Representative hereby accepts such appointment;
(ii) without limiting the foregoing, as of the Effective Time the Stockholders’ Representative shall have full authority to (A) execute, deliver, acknowledge, certify and file on behalf of the Stockholders Participating Securityholders (in the name of any litigation or arbitration involving this Agreement, act as the paying agent on behalf all of the Participating Securityholders or otherwise) any and all documents that the Stockholders’ Representative may, do in its sole discretion, determine to be necessary, desirable or refrain from doing all appropriate, in such further acts forms and things, and execute all containing such documents provisions as the Stockholders’ Representative may, in its sole discretion, determine to be appropriate, (B) give and receive notices and other communications relating to this Agreement and the transactions contemplated hereby and thereby (except to the extent that this Agreement contemplates that such notice or communication shall deem 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 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;
(iii) Parent shall be entitled to rely conclusively, and shall be protected in acting, or refraining from acting, upon any written notice, instruction, request or decision given or made by the Stockholders’ Representative as to any of the matters described in this Section 1.12 as if such notice, instruction, request or decision had been given or made by all of the Participating Securityholders, and no party shall have any cause of action against Parent or the Surviving Corporation for any action or inaction of Parent in reliance upon any such notice, instruction, request or decision;
(iv) all actions, decisions and instructions of the Stockholders’ Representative shall be conclusive and binding upon each of the Participating Securityholders;
(v) 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 fraud or willful breach of this Agreement on the part of the Stockholders’ Representative;
(vi) the provisions of this Section 1.12 are independent and severable, are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Participating Securityholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service (vii) the provisions of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative Section 1.12 shall be deemed coupled with an interest binding upon the executors, heirs, legal representatives successors and shall be irrevocableassigns of each Participating Securityholder, and Parentany references in this Agreement to a Participating Securityholder or the Participating Securityholders shall mean and include the successors to the Participating Securityholders’ rights hereunder, Federal whether pursuant to testamentary disposition, the laws of descent and ATS may conclusively distribution or otherwise.
(d) As between the Participating Securityholders and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders liable for any loss act done or damages the Stockholders may suffer by the performance by the omitted hereunder as Stockholders’ Representative while acting in good faith, and any act done or omitted to be done pursuant to the advice of her duties under this Agreement, other than loss or damage arising from willful violation counsel shall be conclusive evidence of the law by the Stockholders’ Representative of her duties under this Agreementsuch good faith. The Stockholders’ Representative and her heirs and personal or legal representatives shall be entitled to be indemnified and held harmless and reimbursed by the Stockholders from, and indemnified Participating Securityholders against any loss loss, liability or damages expense incurred without bad faith, gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the performance acceptance or administration of her obligations its duties hereunder and in accordance connection 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 of her duties hereunder. The foregoing indemnity shall survive expenses, at the resignation or substitution election of the Stockholders’ Representative. Notwithstanding anything , at any time (i) from the Escrow Fund, to the contrary hereinextent any funds remain in such fund; or (ii) from the Participating Securityholders according to each Participating Securityholder’s Pro Rata Fraction; provided, however, that no Participating Securityholder shall be liable to the Stockholders’ Representative shall have no liability or obligation for any amount in excess of the portion of the Merger Consideration Amount to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3which such Participating Securityholder has received.
Appears in 1 contract
Stockholders’ Representative. The Stockholders (a) By virtue of the adoption of this Agreement, the Stockholders’ Representative is hereby appoint ▇▇▇▇▇▇▇ authorized, directed and appointed to act as the true sole and lawful agent and exclusive agent, attorney-in-fact (the “Stockholders’ Representative”) and representative of the Stockholders Stockholders, with full power of substitution to act in the name, place and stead of the Stockholders authority with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in under this Agreement, including the power (i) to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to negotiate, execute and deliver all ancillary agreements, certificates certificates, approvals, waivers, amendments and other documents that 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’ Representatives; (vi) to perform the duties expressly assigned to the Stockholders’ Representative deems under this Agreement; (vii) to engage and employ agents and representatives (including accounting, legal and other professional advisors) on behalf of and at the expense of the Stockholders; (viii) to exercise or 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 appropriate 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 consummation of the transactions contemplated foregoing; and (xi) to take all other actions to be taken by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that in connection with this Agreement. Each Stockholder agrees to be bound by all agreements and determinations made by and documents executed and delivered by the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating pursuant to the subject matter 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 and to settle any claim or controversy arising with respect thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Paying Agent Agreement Stockholders’ Representative consistent herewith, shall be absolutely and irrevocably final and binding on each Stockholder (including its applicable successors and assigns) as fully if such Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Stockholder’s individual capacity, and completely as no Stockholder (including its applicable successors or assigns) shall have the Stockholders could do if personally present; and
2.4.5 right to receive service of process in connection with any claims under this Agreementobject, dissent, protest or otherwise contest the same. The appointment of the Stockholders’ Representative shall be deemed is coupled with an interest and shall be irrevocableirrevocable 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 Parentobligations under this Agreement by or on behalf of any or all Stockholders, Federal including legal, accounting and ATS may 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 absolutely rely, without inquiry, upon any action decisions of the Stockholders’ Representative or any other actions required or permitted to be taken by the Stockholders’ Representative under this Agreement or in all connection with any of the transactions and other matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve contemplated by this Agreement.
(e) The Stockholders’ Representative may resign from its capacity as the Stockholders’ Representative, Representative at any time by written notice delivered to Purchaser. If there is a vacancy at any time in the successor position of Stockholders’ Representative for any reason, such vacancy shall be designated in writing filled by a vote of the Stockholders who that held a majority of the ATS Common Company Stock immediately prior to the Closing. If any individual Stockholders should die .
(f) In the absence of deliberate fraud or become incapacitatedwillful misconduct, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable to Purchaser or the Stockholders for any loss or damages the Stockholders may suffer by the performance by in its capacity as the Stockholders’ Representative for any liability of her duties under this Agreementa Stockholder or for any error of judgment, other than loss or damage arising any act done or step taken or omitted by it that it believed to be in good faith or for any mistake in fact or law, or for anything which it may do or refrain from willful violation of the law by the Stockholders’ Representative of her duties under 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 her heirs without limiting the foregoing, it shall incur no liability in his capacity as Stockholders’ Representative to Purchaser or the Stockholders and personal or legal representatives shall be held harmless 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 fromshall severally, but not jointly, indemnify and indemnified against hold harmless, in accordance with their respective Pro Rata Share, the Stockholders’ Representative from any loss or damages and all losses, Liabilities and expenses (including the fees and expenses of counsel) arising out of or in connection with the Stockholders’ Representative’s execution and performance of her obligations in accordance with the provisions of this Agreement, except for any .
(g) The rights to indemnification and immunities of the foregoing arising out of the willful violation of the law by the a Stockholders’ Representative of her duties hereunder. The foregoing indemnity under this Agreement shall survive the resignation or substitution removal of the Stockholders’ RepresentativeRepresentative and the Closing or termination of this Agreement. Notwithstanding anything to the contrary herein, All rights and powers of the Stockholders’ Representative under this Agreement shall have no liability survive the Closing or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3termination of this Agreement.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each holder of Company Common Stock, by signing this Agreement, designates ▇▇▇▇▇ ▇▇▇ and in the event that he is unable or unwilling to serve, ▇▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as be the Stockholders’ ' representative (the "Stockholders' Representative, the successor Stockholders’ Representative ") for purposes of this Agreement. The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action and all actions taken by the Stockholders’ ' Representative on their behalf.
(b) AppNet and Newco shall be entitled to rely upon any communication or writings given or executed by the Stockholders' Representative. All notices, communications or writings to be sent to Stockholders pursuant to this Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any notice, communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative; and in general to be do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. This power of attorney and all authority hereby conferred is granted subject to the best interest of the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to the Stockholders for terminated by any loss act of any Stockholder, by operation of law, whether by such Stockholder's death or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, any other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Commerce One Inc)
Stockholders’ Representative. The (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 Purchasers pursuant to Section 10 hereof the Stockholders hereby appoint ▇▇designate ▇▇▇▇▇ ▇▇▇▇ as the true and lawful agent and attorney-in-fact their representative (the “"Stockholders’ ' Representative”").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders with full power to consummate the transactions contemplated hereby, or the defense and/or settlement of substitution to act in the name, place and stead of any claims for which the Stockholders with respect may be required to the surrender of the stock certificates owned by 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 to Federal in accordance with the terms under this Agreement and provisions of this Agreementunder any Related Instruments (as defined below), and (iii) to act take any and all additional actions (including signing on their behalf) as is contemplated to be taken by or on behalf of the Stockholders in by the terms of this Agreement and any litigation agreement or arbitration involving 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 AgreementAgreement and any Related Instrument.
(d) All decisions and actions by the Stockholders' Representative, act as including, without limitation, any agreement between the paying agent on behalf Stockholders' Representative and Purchasers relating to the defense or settlement of any 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, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts 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 thingsdecisions of the Stockholders' Representative as to the determination of the settlement of any claims for indemnification by the Purchasers pursuant to Section 10 hereof or any other actions required to be taken by the Stockholders' Representative hereunder, and execute all such documents as 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) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Section 1.4 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders (iv) remedies available at law for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative breach of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this AgreementSection 1.4 are inadequate; therefore, except for any Purchasers and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either of the foregoing arising out Purchasers or the Company brings an action to enforce the provisions of this Section 1.4; and
(v) the willful violation provisions of this Section 1.4 shall be binding upon the law 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' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All reasonable fees and expenses incurred by the Stockholders’ Representative of her 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 thanbe paid from the funds in Escrow, and only if such funds are insufficient, then by the Stockholders in proportion to the extent of, her individual liability as a Stockholder their ownership of Shares as set forth in Section 6.3.on Schedule 1 attached hereto. ----------
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) J▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ hereby is irrevocably constituted and appointed as the sole, exclusive, true and lawful agent agent, representative and attorney-in-fact of all Stockholders and each of them (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to any and all matters relating to, arising out of, or in connection with, the surrender Transaction Documents (other than the Employment Agreements), including for purposes of the stock certificates owned by the Stockholders taking any action or omitting to Federal in accordance with the terms and provisions of this Agreement, and to act take action on behalf of the Stockholders in any litigation thereunder. All actions, notices, communications and determinations by or arbitration involving this Agreement, act as the paying agent on behalf of Stockholders under such documents shall be given or made by the Stockholders, do or refrain from doing ’ Representative and all such further acts actions, notices, communications and things, and execute all such documents as determinations by the Stockholders’ Representative shall deem necessary 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 appropriate 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 transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act Stockholders’ Representative’s carrying out its duties as representative for the Stockholders with regard to matters pertaining to indemnification referred to in under this Agreement, including the power to compromise any indemnity claim on behalf costs and expenses of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that successfully defending the Stockholders’ Representative deems necessary or appropriate 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 connection good faith and in accordance with the consummation 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) 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 instruments, certificates, documents and agreements with respect to the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to Transaction Documents (other than the Purchase PriceEmployment Agreements), and any other instrument, certificate, document or agreement referred to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed Section 8.02, and (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 that may act, with respect to all matters under the Transaction Documents (other than the Employment Agreements), only through the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating Representative. Parent shall be entitled to rely on the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment authority of the Stockholders’ Representative shall be deemed coupled with an interest as the agent, representative and attorney-in-fact of Stockholders for all purposes under the Transaction Documents (other than the Employment Agreements) and shall be irrevocable, and Parent, Federal and ATS have no liability for any such reliance. None of Stockholders may conclusively and absolutely rely, without inquiry, upon any action revoke the authority of the Stockholders’ Representative in all matters referred Representative. Each Stockholder hereby ratifies and confirms, and hereby agrees to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occurratify and confirm, any action taken by the Stockholders’ Representative in the exercise of the power-of-attorney granted to the Stockholders’ Representative pursuant to this Section 2.4 2.15, which power-of-attorney, being coupled with an interest, is irrevocable and shall be as valid as if such death survive the death, incapacity or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice incompetence of such death, incapacity, termination or other eventStockholder. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be Any payment made to the Stockholders’ Representative for the benefit pursuant to any of the Stockholders and Transaction Documents (other than the Employment Agreements) shall discharge in full all notice requirements 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 Parentsuch payment. Without limiting the foregoing, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all covenant and agree to defend, indemnify and hold harmless the members of the Parent Indemnified Group from and against any Losses arising out of any claim that the Stockholders’ Representative shall do failed to distribute to Stockholders (or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for properly allocate among them) any loss or damages the Stockholders may suffer by the performance payments received by the Stockholders’ Representative of her duties under this Agreement, the Transaction Documents (other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3Employment Agreements).
Appears in 1 contract
Stockholders’ Representative. The Stockholders (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 appoint ▇▇▇▇▇▇▇ designates, Shareholder Representative Services LLC as the true and lawful agent and attorney-in-fact Stockholders’ Representative (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with under the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to set forth herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act as the representative of the Indemnifying Parties, and shall be authorized to 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, the exercise of the power to (i) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification and (ii) take all actions necessary in the judgment of the Stockholders’ Representative for the Stockholders on accomplishment of the foregoing). In all matters relating to this Article IX, the Stockholders’ Representative shall be the only party entitled to assert the rights of the Indemnifying Parties, and the Stockholders’ Representative shall perform all of the matters 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 in his, her or its capacity thereof, except for any action that conflicts with the limitations set forth in this Agreement subsection (d) below. The Stockholders’ Representative shall at all times act in the his or her capacity as Stockholders’ Representative in a manner that the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with Indemnifying Parties. Neither the obligations 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, but except in the case of its gross negligence or willful misconduct. The Stockholders’ Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders’ Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement.
(c) Each Indemnifying Party shall indemnify and hold harmless and reimburse the Stockholders’ Representative from and against such Indemnifying Party’s ratable share of any and all liabilities, losses, damages, claims, suits, actions, causes of action, costs or expenses (including attorneys’ fees and court costs) (collectively, “Representative Losses”) suffered or incurred by the Stockholders’ Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders’ Representative under this Agreement, in each case as such Representative Loss is incurred; provided that in the event it is finally adjudicated that a Representative Loss or any portion thereof was primarily caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Indemnifying Parties the amount of such indemnified Representative Loss attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Indemnifying Parties, any such 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 not die, be responsible removed, become disabled, resign or otherwise be unable to fulfill its responsibilities hereunder, the Stockholders for any loss 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 damages the Stockholders may suffer by the performance by inability, appoint a successor to the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation and immediately thereafter notify Parent of the law by identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative of her duties under this Agreementhereunder. The If for any reason there is no Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders fromat any time, and indemnified against any loss or damages arising out of or in connection with the performance of her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything all references herein to the contrary herein, the Stockholders’ Representative shall have no liability or obligation be deemed to any Parent Indemnified Party otherwise than, and only refer to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Indemnifying Parties.
Appears in 1 contract
Sources: Merger Agreement (DemandTec, Inc.)
Stockholders’ Representative. The (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 appoint designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact their representative (the “"Stockholders’ ' Representative”").
(b) The Stockholders hereby authorize the Stockholders' Representative (i) to take all action necessary in connection with the waiver of any condition to the obligations of the Stockholders with full power to consummate the transactions contemplated hereby, or the defense and/or settlement of substitution to act in the name, place and stead of any claims for which the Stockholders with respect may be required to indemnify the surrender of Buyer or the stock certificates owned by Company pursuant to Section 7 hereof, (ii) to give and receive all notices required to be given under the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and (iii) to act take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders in any litigation or arbitration involving by the terms of this Agreement.
(c) In the event that the Stockholders' Representative dies, act 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 paying agent on behalf Stockholders' Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Representative, including, without limitation, any agreement between the Stockholders' Representative and the Buyer relating to the defense or settlement of any claims for which the 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, do and no Stockholder shall have the right to object, dissent, protest or refrain from doing all such further acts 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 thingsdecisions of the Stockholders' Representative as to the settlement of any claims for indemnification by the Buyer or the Company pursuant to Section 7 hereof or any other actions required to be taken by the Stockholders' Representative hereunder, and execute all such documents as 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) all actions, decisions and instructions of the Stockholders' Representative shall deem necessary 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 appropriate instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(iii) the provisions of this Subsection 1.04 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders (iv) remedies available at law for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative breach of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her obligations in accordance with the provisions of this AgreementSubsection 1.04 are inadequate; therefore, except for the Buyer and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either the Buyer or the Company brings an action to enforce the provisions of this Subsection 1.04; 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' rights hereunder, whether pursuant to testamentary disposition, the laws of the foregoing arising out of the willful violation of the law descent and distribution or otherwise.
(f) All fees and expenses incurred by the Stockholders’ ' Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of be paid by 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Stockholders’ Representative. (a) The Stockholders’ Representative is hereby appointed and authorized to have full power and authority to represent each of, and take all actions under this Agreement and the Transaction Documents that are to be taken by, the Company Stockholders hereby appoint ▇▇▇▇▇▇▇ as and holders of Cash-Out Options, whether collectively or individually, or by the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”, and (x) all actions taken by the Stockholders’ Representative hereunder and thereunder shall be binding upon all the Company Stockholders and their successors and assigns as if expressly confirmed and ratified in writing by each of them and (y) no Company Stockholder or holder of Cash-Out Options shall have a right to object, dissent, protest or otherwise contest the same. Any action to be taken by the Company Stockholders or holder of Cash-Out Options collectively under this Agreement or the Transaction Documents shall be taken by the Stockholders’ Representative.
(b) The Stockholders’ Representative is hereby authorized to:
(i) receive all notices or documents given or to be given to any of the Stockholders with full power Company Stockholders, holder of substitution Cash-Out Options or the Stockholders’ Representative pursuant hereto or to act any Transaction Document or in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, connection herewith or therewith and to act on behalf receive and accept service of legal process in connection with any suit or proceeding arising under any Transaction Document;
(ii) engage counsel and such accountants and other advisors and incur such expenses in connection with any Transaction Document or the Stockholders in any litigation transactions contemplated hereby 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 thereby as the Stockholders’ Representative shall may in its sole discretion deem necessary or appropriate;
(iii) after the date of this Agreement, take such action as the Stockholders’ Representative may, in its sole discretion, deem appropriate in connection with respect of: (A) waiving any inaccuracies in the representations or warranties of Parent contained in this Agreement or in any document delivered by Parent pursuant hereto; (B) taking such other action as the Stockholders’ Representative is authorized to take under any Transaction Document; (C) receiving all documents or certificates and making all determinations, in its capacity as Stockholders’ Representative, required under any Transaction Document; and (D) all such actions as may be necessary to carry out any of the transactions contemplated by this Agreementany Transaction Document, including, without limitation, the power:defense and/or settlement of any Claims for which indemnification is sought pursuant to this ARTICLE VIII and any waiver of any obligation of Parent; and
2.4.1 (iv) interpret all of the terms and provisions of any Transaction Document, authorize payments to act be made with respect hereto or thereto, obtain reimbursement as provided for herein for all out-of-pocket fees and expenses and other obligations of or incurred by the Stockholders Stockholders’ Representative in connection with regard this Agreement and the Transaction Documents, defend all indemnity claims 69 pursuant to matters pertaining to indemnification referred to in this Agreement, including consent to, compromise or settle all such claims for indemnification by Parent and/or any Parent Indemnitee, conduct negotiations with Parent and/or any Parent Indemnitee and their agents regarding such claims, dealing with Parent and/or any Parent Indemnitee under this Agreement, take any all other actions specified in or contemplated by any Transaction Document, and engage counsel, accountants or other representatives in connection with the foregoing matters.
(c) Without limiting the generality of Section 8.7(a), the Stockholders’ Representative is hereby authorized to have the full power and authority to compromise interpret all the terms and provisions of any indemnity claim Transaction Document and to consent to any amendment hereof or thereof on behalf of the Company Stockholders and holders of Cash-Out Options in its capacity as Stockholders’ Representative.
(d) The Stockholders’ Representative shall have no duties or liability to transact matters the Company Stockholders or holders of litigation;
2.4.2 Cash-Out Options with respect to execute and deliver all ancillary agreementsany action taken, certificates and documents that decision made or instruction given by the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of any Transaction Document.
(e) The Company Stockholders hereby agree, in accordance with the transactions contemplated by this Agreement;
2.4.3 Owner’s Percentage Interest, to act as the paying agent indemnify, defend and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that hold the Stockholders’ Representative deems necessary and 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 appropriate controlling persons, in her sole discretion each case relating to the subject matter Stockholders’ Representative’s conduct as Stockholders’ Representative, harmless against all liabilities incurred by them, other than Liabilities resulting from the Stockholders’ Representative’s fraud or willful misconduct in connection with his performance under any Transaction Document. This indemnification shall survive the termination of this Agreement. The costs of such indemnification (including the costs and expenses of enforcing this right of indemnification) shall be paid by the Company Stockholders and holders of Cash-Out Options and Parent shall not have any liability therefor. The Stockholders’ Representative may, in all questions arising under this Agreement, rely on the advice of counsel and for anything done, omitted or suffered in good faith by the Stockholders’ Representative in accordance with such advice, the Stockholders’ Representative shall not be liable to the Company Stockholders, holders of Cash-Out Options or any other Person. In no event shall the Stockholders’ Representative be liable hereunder or in connection herewith for any indirect, punitive, special or consequential damages.
(f) Subject to any applicable privileges, the Stockholders’ Representative shall have reasonable access to information of and concerning any indemnity claims of Parent and/or any Parent Indemnitee pursuant to this Agreement and which is in the possession, custody or control of the Company Stockholders and/or Parent and the reasonable assistance of the Company Stockholders and holders of Cash-Out Options (and their respective successors’ and assigns’) for purposes of performing the Stockholders’ Representative duties under this Agreement or the Transaction Documents and exercising his rights under this Agreement and the Paying Agent Transaction Documents, including for the purpose of evaluating any indemnity claims of the Company Stockholders and or holders of Cash-Out Options pursuant to this ARTICLE VIII.
(g) In the performance of its duties hereunder, the Stockholders’ Representative shall be entitled to (i) rely upon any document or instrument reasonably believed by its to be genuine, accurate as to content and signed by any Company Stockholder and any holder of Cash-Out Options or any other party hereunder and (ii) assume that any Person purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so.
(h) The Company Stockholders collectively holding over a majority of the Company Capital Stock on an as-converted, fully diluted basis immediately prior to the Closing shall have the right at any time following the Closing to remove the then-acting Stockholders’ Representative and/or to appoint a successor Stockholders’ Representative upon the resignation or removal of the Stockholders’ Representative; provided, however, that neither the removal/resignation of the then acting Stockholders’ Representative nor the appointment of a successor Stockholders’ Representative shall be effective until the delivery to Parent of executed counterparts of a writing signed by Company Stockholders collectively holding over a majority of the Company Capital Stock on an as-converted, fully diluted basis immediately prior to the Closing with respect to such removal, resignation and appointment, together with an acknowledgement signed by the successor Stockholders’ Representative appointed in such writing that he, she or it accepts the responsibility of successor Stockholders’ Representative and agrees to perform and be bound by all of the provisions of this Agreement as fully applicable to the Stockholders’ Representative. Each successor Stockholders’ Representative shall have all of the power, authority, rights and completely as privileges conferred by this Agreement upon the Stockholders could do if personally present; andoriginal Stockholders’ Representative, and in the Transaction Documents and shall be deemed to include any interim or successor Stockholders’ Representative.
2.4.5 (i) Prior to receive service Closing, the Stockholders’ Representative shall be permitted to assign its duties hereunder with the prior written consent of process in connection with any claims Parent and the Company, which consents shall not be unreasonably withheld. Prior to Closing, the Company can agree to pay a successor Stockholders’ Representative a fee for services to be performed by such Stockholders’ Representative under this Agreement. The , which fee shall be in cash from the Company prior to the Closing.
(j) Subject to Section 8.7(h), the appointment of the Stockholders’ Representative shall be deemed coupled with an interest hereunder is irrevocable and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to the authority granted in this Section 2.4 8.8 shall be effective and absolutely binding as valid as if such death or incapacity, termination or other event had not occurred, regardless the action of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability as a Stockholder as set forth in Section 6.3Transaction Document.
Appears in 1 contract
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/)
Stockholders’ Representative. (a) Each holder of Company Capital Stock, by signing this Agreement, designates Tyler to be the Stockholders' Representative for purposes of this Agreement. The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(b) LifeMinders shall be entitled to rely upon any communications or writings given or executed by the Stockholders' Representative. All notices to be sent to the Stockholders pursuant to this Agreement may be addressed to the Stockholders' Representative and any notices so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby appoint ▇▇▇▇▇▇▇ as consent and agree that the Stockholders' Representative is authorized to accept notice on behalf of the Stockholders pursuant thereto.
(c) The Stockholders' Representative is hereby appointed and constituted the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Stockholder, with full power of substitution in his name and one his behalf to act according to the terms of this Agreement in the name, place and stead absolute discretion of the Stockholders with respect Stockhold- ers' Representative; and in general to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, do all things 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 perform all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreementexecuting, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver delivering and/or amending all ancillary agreements, certificates certificates, receipts, instructions and documents that the Stockholders’ Representative deems necessary other instruments contemplated by or appropriate deemed advisable in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment This power of the Stockholders’ Representative shall be deemed coupled with an interest attorney and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or authority hereby conferred is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior granted subject to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) The Stockholders shall severally and pro rata, in accordance with their pro rata portion, of the Stockholders for any loss or damages the Stockholders may suffer by the performance by Merger Consideration, indemnify and hold harmless the Stockholders’ ' Representative of her duties under this Agreementfrom and against any loss, other than loss liability or damage arising from willful violation expense incurred without gross negligence or bad faith on the part of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ ' Representative and her 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 acceptance or administration of her obligations in accordance with the provisions of their duties hereunder under this Agreement, except for any of the foregoing arising out of the willful violation of the law by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Merger Agreement (Lifeminders Inc)
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act ▇▇, in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents event that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If Robe▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ resigns▇▇ unable or unwilling to serve, dies or is otherwise unable to serve as Gary ▇▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders’ ' Representative, the successor Stockholders’ Representative "). The Stockholders shall be designated in writing bound by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action 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 Section 2.4 shall Agreement may be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made addressed to the Stockholders’ ' Representative for the benefit and any communication or writing so sent shall be deemed notice to all of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect theretohereunder. The Stockholders hereby confirm all consent and agree that the Stockholders’ ' Representative shall do or cause is authorized to be done by virtue of her appointment as the Stockholders’ Representative accept deliveries, including any notice, on behalf of the Stockholders. Stockholders pursuant hereto.
(c) The Stockholders’ ' Representative shall 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 for according to the Stockholders on all terms of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and 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 best interest of such Stockholder and the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible 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 actions, decisions, notices and exercises of any rights, power or authority proposed to the Stockholders for any loss be done, given or damages the Stockholders may suffer taken by the performance by the Stockholders’ Representative of her duties under this Agreementsuch Stockholder Representative, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless act as directed by the Stockholders from, and indemnified against any loss or damages arising out of or holding a majority interest in connection with the performance of her 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 of her 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, her individual liability Escrow Property (as a Stockholder as set forth defined in Section 6.34.1(b)).
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. (a) The Stockholders hereby nominate, constitute and appoint an individual to be designated by ▇▇▇▇ Capital Venture Fund 2005, L.P. as the representative of the Escrow Fund Participants (the “Stockholders’ Representatives”), with full power of substitution, with the full right power and authority to act on their behalf under this Agreement and the Escrow Agreement, to serve as their lawfully designated attorney-in-fact (which shall include, without limitation, the right, power and authority to contractually obligate, execute, deliver, acknowledge, certify, file and record on behalf of the Escrow Fund Participants (in the name of any or all of the Escrow Fund Participants or otherwise) any and all documents deemed necessary, appropriate or advisable by the Stockholders’ Representative in the Stockholders’ Representative’s sole discretion, including any amendment to 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 receive notices and communications under this Agreement for the Escrow Fund Participants (including, without limitation, with respect to claims by Parent and the Parent Damaged Parties), to object to any notices received hereunder, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take any and all other actions of any kind or nature whatsoever deemed necessary, appropriate, or advisable in the sole discretion and judgment of the Stockholders’ Representative for the accomplishment of the foregoing. No bond shall be 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 Escrow Fund Participant. ▇▇▇▇ Capital Investors, LLC hereby designates J. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇ as the true and lawful agent and attorney-in-fact (the “initial Stockholders’ Representative”.
(b) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible liable to the Stockholders Escrow Fund Participants for any loss act done or damages omitted as Stockholders’ Representative, except in the Stockholders may suffer by case of bad faith or willful misconduct, and any act done or omitted pursuant to the performance by advice of counsel shall be 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 her duties under this Agreementits Affiliates and any of their respective heirs, other than loss successors, assigns, partners, directors, officers, employees, agents, stockholders, consultants, attorneys, accountants, advisors, brokers, representatives or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders from, and indemnified controlling persons) against any loss loss, liability or damages expense incurred and arising out of or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any acceptance or administration of the foregoing arising out Stockholders’ Representative’s duties hereunder, other than as a result of the fraud or willful violation of the law misconduct by the Stockholders’ Representative of her duties hereunder(or any such persons). The foregoing indemnity 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 survive not be effective until Parent and the resignation 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 substitution about the Company to any person, except (i) on a need to know basis to individuals who agree to treat such information confidentially or (ii) as required by any applicable law, regulation or order of a court or other binding legal process. The Stockholders’ Representative will not be entitled to 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 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 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. Notwithstanding anything The Escrow Fund Participants shall not bring any action or claim against any Parent Damaged Party with respect to the contrary herein, any action or inaction by the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise thanRepresentative.
(e) The Escrow Fund Participants hereby agree, acknowledge, recognize and intend that the power of attorney granted in Section 6.9(a), above: (i) is coupled with an interest, (ii) may be delegated by the Stockholders’ Representative, and only to (iii) shall survive the extent of, her individual liability as a Stockholder as set forth in Section 6.3death or incapacity of any Escrow Fund Participant.
Appears in 1 contract
Sources: Merger Agreement (Compuware Corp)
Stockholders’ Representative. The Stockholders hereby appoint ▇▇▇▇▇▇▇ as the true and lawful agent and attorney-in-fact (the “Stockholders’ Representative”) Sellers have, either by virtue of their approval of the Stockholders with full power Purchase Agreement or through their acceptance of substitution to act in the name, place and stead of the Stockholders with respect Merger Consideration pursuant to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Purchase Agreement, and to act on behalf consented to: (a) the appointment of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with as representative of the transactions contemplated by Sellers for all purposes of the Purchase Agreement and this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the full power to compromise any indemnity claim and authority on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver Sellers to: (i) take all ancillary agreements, certificates and documents that the Stockholders’ Representative deems actions necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter post-closing implementation of this Agreement and related agreements; (ii) negotiate, settle, compromise and otherwise handle all claims for indemnification made by an Acquiror pursuant to this Agreement; (iii) enter into this Agreement and to act pursuant hereto; and (iv) enter into a waiver or amendment of this Agreement; subject to those limitations set forth in the Paying Agent Purchase Agreement; (b) the establishment of this escrow to secure the Sellers’ indemnification obligations under Article VII of the Purchase Agreement as fully and completely as to satisfy any post-closing adjustment obligations to the Stockholders could do if personally presentAcquiror pursuant to Sections 2.10 and 2.11 of the Purchase Agreement, all in the manner set forth herein; and
2.4.5 to receive service and (c) all of process the other terms, conditions and limitations in connection with any claims under this Agreement. The appointment Any expenses or costs of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders hereunder shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance by the Stockholders’ Representative of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ Representative. Notwithstanding anything remaining Escrow Funds (if any) that would otherwise be paid to the contrary hereinSellers under Section 4.6 hereof, with each Seller being deemed to participate in such expenses, on a pro rata basis, within three (3) Business Days following the Stockholders’ Representative shall have no liability or obligation to any Parent Indemnified Party otherwise than, and only to the extent of, her individual liability as a Stockholder as set forth in Section 6.3Termination Date.
Appears in 1 contract
Stockholders’ Representative. The (a) In order to administer efficiently the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby, the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Buyer or the Company pursuant to Section 10 hereof, and any other actions required to be taken by any Stockholder in connection herewith other than the New Employment Agreements (as defined in Section 8.8 hereof), the Stockholders hereby designate and appoint ▇▇▇▇▇▇▇ Kenneth W. Nill as the true and lawful agent their representative and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders with full power of substitution to act in the name, place and stead of the Stockholders with respect to the surrender of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ resignsty, dies or is otherwise unable the "Stockholders' Representative").
(b) By their execution of this Agreement, the Stockholders agree that: (i) the Buyer and the Company shall be able to serve as rely conclusively without further inquiry on the instructions and decisions of the Stockholders’ ' Representative acting in such capacity as to the settlement of any claims for indemnification by the Buyer or the Company pursuant to Section 10 hereof and as to any other action taken by the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against the Buyer or the Company for any action taken by the Buyer or the Company in reliance upon the instructions or decisions of the Stockholders' Representative; (ii) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders; and (iii) as among the Stockholders and the Stockholders' Representative, the successor Stockholders’ ' Representative shall not be designated in writing by entitled to take any action without obtaining the applicable required consents under a separate agreement to be entered into among the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual The Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative covenant for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all Buyer that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner the Stockholders’ Representative believes to be in the best interest of the Stockholders and consistent with the obligations under this Agreement, but the Stockholders’ Representative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by the performance no action by the Stockholders’ ' Representative in connection herewith shall require the consent of her duties under this Agreement, other Stockholders holding more than loss or damage arising from willful violation two thirds (66 2/3 percent) of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her 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 her 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 of her 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, her individual liability aggregate Payment Percentages (as a Stockholder as set forth defined in Section 6.310.2(d)) of all Stockholders.
Appears in 1 contract
Stockholders’ Representative. The Stockholders hereby appoint (a) Each Stockholder, by signing this Agreement, designates Rich▇▇▇ ▇. ▇▇▇▇▇ (▇▇, in the event that he is unable or unwilling to serve or resigns, W. Jept▇▇ ▇▇▇▇▇▇▇▇) ▇▇ as be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative"). The Stockholders shall be bound by any and all actions taken by the Stockholders' Representative on their behalf.
(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 agent and attorney-in-fact (the “Stockholders’ Representative”) of the Stockholders each Stockholder, with full power of substitution in his or her name and on his or her behalf to act in the name, place and stead of the Stockholders with respect according to the surrender terms of the stock certificates owned by the Stockholders to Federal in accordance with the terms and provisions of this Agreement, and to act on behalf of the Stockholders in any litigation or arbitration involving this Agreement, act as the paying agent on behalf of the Stockholders, do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders’ Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
2.4.1 to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any indemnity claim on behalf of the Stockholders and to transact matters of litigation;
2.4.2 to execute and deliver all ancillary agreements, certificates and documents that the Stockholders’ Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement;
2.4.3 to act as the paying agent and to receive funds and give receipts for funds, including in respect of any adjustments to the Purchase Price, and to do or refrain from doing the actions further described in the Paying Agent Agreement;
2.4.4 to do or refrain from doing any further act or deed on behalf of the Stockholders that the Stockholders’ Representative deems necessary or appropriate in her sole discretion relating to the subject matter of this Agreement and the Paying Agent Agreement as fully and completely as the Stockholders could do if personally present; and
2.4.5 to receive service of process in connection with any claims under this Agreement. The appointment of the Stockholders’ Representative shall be deemed coupled with an interest and shall be irrevocable, and Parent, Federal and ATS may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders’ Representative in all matters referred to herein. If ▇▇▇▇▇▇▇ resigns, dies or is otherwise unable to serve as the Stockholders’ Representative, the successor Stockholders’ Representative shall be designated in writing by the Stockholders who held a majority of the ATS Common Stock immediately prior to the Closing. If any individual Stockholders should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders’ Representative pursuant to this Section 2.4 shall be as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders’ Representative or the Surviving Corporation shall have received notice of such death, incapacity, termination or other event. All notices required to be made or delivered by Parent, Federal or ATS to the Stockholders shall be made to the Stockholders’ Representative for the benefit of the Stockholders and shall discharge in full all notice requirements of Parent, Federal or the Surviving Corporation to the Stockholders with respect thereto. The Stockholders hereby confirm all that the Stockholders’ Representative shall do or cause to be done by virtue of her appointment as the Stockholders’ Representative of the Stockholders. The Stockholders’ Representative shall act for the Stockholders on all of the matters set forth in this Agreement in the manner absolute discretion of the Stockholders’ Representative believes ' Representative, and in general to be do all things and to perform all acts including, executing and delivering all agreements, certificates, receipts, instructions and 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 best interest of such Stockholder and the other Stockholders hereunder and consistent with in consideration of the obligations under this Agreementmutual covenants and agreements made herein, but the Stockholders’ Representative and shall be irrevocable and shall not be responsible to terminated by any act of any Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(d) Notwithstanding the Stockholders for any loss or damages foregoing, the Stockholders may suffer by Stockholder Representative shall inform the performance by the Stockholders’ Representative other Stockholder of her duties under this Agreement, other than loss or damage arising from willful violation of the law by the Stockholders’ Representative of her duties under this Agreement. The Stockholders’ Representative and her heirs and personal or legal representatives shall be held harmless by the Stockholders fromall notices received, and indemnified against of all actions, decisions, notices and exercises of any loss rights, power or damages arising out of authority proposed to be done, given or in connection with the performance of her obligations in accordance with the provisions of this Agreement, except for any of the foregoing arising out of the willful violation of the law taken by the Stockholders’ Representative of her duties hereunder. The foregoing indemnity shall survive the resignation or substitution of the Stockholders’ such Stockholder 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, her individual liability as a Stockholder as set forth in Section 6.3.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)