Stockholders’ Representative. (a) Generally. By executing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Bridgetech Holdings International Inc), Stock Purchase Agreement (Bridgetech Holdings International Inc), Stock Purchase Agreement (Bridgetech Holdings International Inc)
Stockholders’ Representative. (a) Generally. By executing this Agreement6.01 The Stockholders, and each Stockholder designates ▇▇▇of them, hereby appoint ▇▇▇▇ ▇▇▇▇▇ (the "Stockholders' Representative") as their agent to serve as(i) execute and deliver this Escrow Agreement on behalf of the Stockholders and to represent, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent act for and on behalf of, and bind each of each such Stockholder with respect to (x) any dispute related the Stockholders in the performance of all of their obligations arising from or relating to this Escrow Agreement, and including, without limitation (ya) the taking execution and delivery of any document, certificate or agreement required under this Escrow Agreement to be delivered by the Stockholders' Representative ; (b) the negotiation and settlement of any claims of Allegro in respect of the Escrowed Property and all actions for indemnification pursuant to Section 11 of the Reorganization Agreement and the making of any decisions required or permitted objection to be taken by such claims; and (c) the Stockholders' Representative or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative representation of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand Stockholders at any arbitration of, arbitrate, comply with or litigation in respect of the orders of courts and awards of arbitrators with respect to any such disputesforegoing; (ii) give and receive notices and communications, receive service of processprocess under or pursuant to this Escrow Agreement; and (iii) to represent, organize act for, and bind each of the Stockholders in the performance of all of their obligations arising from or assume the defense of claims related to this Escrow Agreement and the indemnification provisions of Section 11 of the Reorganization Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or . The Stockholders' Representative hereby accepts such appointment.
6.02 In the event that the Stockholders' Representative related shall die, become incapacitated, resign or otherwise by unable to this Agreement; and (iv) take all actions necessary in fulfill his duties hereunder, a successor Stockholders' Representative shall be selected by the judgment Stockholders receiving a majority of the Escrowed Property as soon as reasonably practicable thereafter. If the Stockholders desire to remove or replace the Stockholders' Representative for the accomplishment of any of the foregoing. The reason, any such Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement may be so removed or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed replaced by the Stockholders' Representative in connection with any dispute arising under or related Stockholders entitled to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part receive a majority of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable StockholderEscrowed Property. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction decision of all the Stockholders and shall be final, bindingconclusive and binding upon the Stockholders, and conclusive upon each such Stockholder. The Company Allegro and the Buyer Escrow Agent may rely upon any written such decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 2 contracts
Sources: Escrow Agreement (Cinnamon Barry A), Escrow Agreement (Cinnamon Barry A)
Stockholders’ Representative. (a) Generally. By executing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇ (the "Stockholders' Representative") to serve as), and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking by the Stockholders' Representative of , shall have the power to take any and all actions and the making of any decisions required or permitted to be taken by the Stockholders' Representative Stockholders pursuant to this Agreement or any Stockholder under this the Escrow Agreement, including the exercise by the Stockholders' Representative of including, without limitation, the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service to enter into and perform the Escrow Agreement, to make claims for indemnification against AvantGo, to authorize delivery to AvantGo of process, organize AvantGo Stock or assume the defense other property from Escrow in satisfaction of claims related by AvantGo, to this Agreementobject to such deliveries, to agree to, to negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related such claims, and to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Effective upon the approval of this Agreement by the Stockholders, the Stockholders individually shall have no power or authority to take any actions against AvantGo or otherwise pursuant to this Agreement or the Escrow Agreement, and all actions of the Stockholders, whether pursuant to this Agreement or the Escrow Agreement, must be taken solely by the Stockholders' Representative. In the event of the death or written resignation (delivered to AvantGo and the Escrow Agent) as Stockholders' Representative will of, or refusal to act as Stockholders' Representative by, ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇, the Stockholders hereby appoint ▇▇▇▇ ▇▇▇- ▇▇▇▇▇▇ to serve as the successor Stockholders' Representative hereunder. In the event of the death or written resignation (delivered to AvantGo and the Escrow Agent) as Stockholders' Representative of, or refusal to act as Stockholders' Representative by, ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇, the holders of a majority of the shares of AvantGo Stock constituting the Escrow Fund shall serve as the Stockholders' Representative hereunder.
(b) AvantGo shall have authority and power to and shall act on behalf no liability of any kind to any Stockholder with respect to the disposition, settlement as a result of or other handling arising out of any dispute and any other rights action taken or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions not taken and all documents executed by the Stockholders' Representative in connection with at any dispute arising time under this Agreement or related to this Agreement. Each the Escrow Agreement and each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to hereby releases AvantGo from any such Stockholder in the absence liability. AvantGo may conclusively rely, without any obligation of willful misconduct investigation or fraud inquiry of any kind, on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred action taken by the Stockholders' Representative as having been fully authorized and approved by reason of it taking any all necessary action or omitting to take any action pursuant to this Agreement other than Losses incurred by each Stockholder (except such Stockholders, if any, as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any have perfected their dissenter rights under applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativelaw).
Appears in 2 contracts
Sources: Merger Agreement (Avantgo Inc), Merger Agreement (Avantgo Inc)
Stockholders’ Representative. (a) Generally. By executing and delivering this Agreement, each Stockholder designates ▇hereby irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as his true and lawful agent and attorney-in-fact (the "Stockholders' Representative") with full power of substitution to serve asact in his name, place and ▇▇▇▇▇ with respect to all transactions contemplated by, and all terms and provisions of, this Agreement, and to act on his behalf in any dispute or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Stockholders' Representative accepts such designation asshall 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 representative power:
(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 each such Stockholder with regard to matters pertaining to indemnification referred to in this Agreement, including the power to compromise any claim on behalf of any Stockholder and as the attorney-in-fact to transact matters of litigation;
(iii) to execute and agent for deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of each such Stockholder in connection with respect the consummation of the transactions contemplated by this Agreement;
(iv) to (x) do or refrain from doing any dispute related further act or deed on behalf of each Stockholder relating to the subject matter of this Agreement, as fully and completely as each such Stockholder could do if personally present; and
(yv) the taking by to receive all notices on behalf of each Stockholder in connection with any claims or matters under this Agreement.
(b) The appointment of the Stockholders' Representative in this Section 1.04 shall be deemed coupled with an interest and shall be irrevocable, and Buyer and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Stockholders' Representative on behalf of the Stockholders in all matters referred to herein. All notices delivered by Buyer to the Stockholders' Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders shall constitute notice to the Stockholders.
(c) All actions, decisions and instructions of the Stockholders' Representative taken, made or given pursuant to the authority granted to the Stockholders' Representative pursuant to paragraph (a) above shall be conclusive and binding upon the Stockholders, and the Stockholders shall not have the right to object, dissent, protest or otherwise contest the same.
(d) The provisions of this 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 to the Stockholders' Representative and all shall be binding upon the executors, heirs, legal representatives, successors and assigns of each of the Stockholders.
(e) Buyer shall be entitled to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any actions and the making of any decisions required or permitted to be taken by the Stockholders' Representative or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder Stockholders or the Stockholders' Representative related to this Agreement; hereunder, and (iv) take all actions necessary in the judgment no party hereunder shall have any cause of the Stockholders' Representative action against Buyer for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action taken in good faith by Buyer in reliance upon the instructions or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction decisions of the Stockholders' Representative.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Mac-Gray Corp), Stock and Asset Purchase Agreement (Mac-Gray Corp)
Stockholders’ Representative. (a) Generally. By executing this 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, each Stockholder designates the Stockholders hereby designate ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as their representative (the "Stockholders' Representative").
(b) to serve as, and The Stockholders hereby authorize the Stockholders' Representative accepts such designation as, (i) to take all action necessary in connection with the representative implementation of each such Stockholder and as the attorney-in-fact and agent for and Agreement on behalf of each such Stockholder with respect the Stockholders, the waiver of any condition to the obligations of the Stockholders to consummate the transactions contemplated hereby or the settlement of any dispute, (xii) to give and receive all notices required to be given under the Agreement and (iii) to take any dispute related and all additional action as is contemplated to be taken by or on behalf of the Stockholders by the terms of this Agreement.
(c) In the event that the Stockholders' Representative dies, becomes legally incapacitated or resigns from such position, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall fill such vacancy and shall be deemed to be the Stockholders' Representative for all purposes of this Agreement; however, no change in the Stockholders' Representative shall be effective until Buyer is given notice of it by the Stockholders.
(yd) the taking All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders, and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same.
(e) By their execution of this Agreement, the Stockholders agree that:
(i) Buyer shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any and all actions and the making of any decisions required or permitted to be taken by the Stockholders or the Stockholders' Representative hereunder, and no party hereunder shall have any cause of action against Buyer for any action taken by Buyer in reliance upon the instructions or decisions of the Stockholders' Representative;
(ii) 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 Stockholder under this Agreementcause of action against the Stockholders' Representative for any action taken, including the exercise decision made or instruction given by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to under this Agreement, agree to, negotiate, except for fraud or enter into settlements and compromises of, and demand arbitration and comply with orders willful breach of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed Agreement by the Stockholders' Representative in connection 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 necessity of proving damages if Buyer brings an action to enforce the provisions of this Section 1.4; and
(iv) the provisions of this Section 1.4 are independent and severable, shall constitute an irrevocable power of attorney, coupled with any dispute arising under or related an interest and surviving death, granted by the Stockholders to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and shall be binding upon the Stockholders agree to indemnify executors, heirs, legal representatives and hold the Stockholders' Representative harmless against any successors of each Stockholder.
(f) All fees and all Losses including reasonable attorneys' fees expenses incurred by the Stockholders' Representative shall be paid by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 2 contracts
Sources: Merger Agreement (Segue Software Inc), Merger Agreement (Segue Software Inc)
Stockholders’ Representative. (a) GenerallyAt the Closing, Shareholder Representative Services LLC shall be constituted and appointed as the Stockholders’ Representative. By executing For purposes of this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (the "term “Stockholders' ’ Representative") to serve as, and ” shall mean the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each the Company Stockholders to perform all actions required or permitted by the terms of this Agreement, including without limitation to: (i) give and receive notices and communications to or from Parent (on behalf of itself of any other Parent Indemnified Person) relating to this Agreement or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement expressly contemplates that any such Stockholder notice or communication shall be given or received by such stockholders individually); (ii) authorize deliveries to Parent of assets from the Holdback Shares in satisfaction of claims asserted by Parent (on behalf of itself or any other Parent Indemnified Person, including by not objecting to such claims); (iii) object to such claims pursuant to Section 9.08; (iv) consent or agree to, negotiate, enter into, or, if applicable, prosecute or defend, settlements and compromises of, and comply with orders of courts with respect to, such claims; (v) provide any consents hereunder, including with respect to (x) any dispute related proposed settlement of any claims or agree to any amendment to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (ivvi) take all actions necessary or appropriate in the judgment of the Stockholders' ’ Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any person under any circumstance. The person serving as the Stockholders’ Representative may be replaced from time to time by the holders of a majority in interest of the foregoingassets then on deposit in the Holdback Shares upon not less than ten days’ prior written notice to Parent and the Stockholders’ Representative. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall receive no compensation for his services other than pursuant to the terms of that certain Stockholder Representative Agreement, dated on or about the date hereof, by and among Shareholder Representative Services LLC, the Company and certain of the Company Stockholders. The Stockholders' ’ Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection permitted to communicate with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them Stockholders, including in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeelectronic form.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lenco Mobile Inc.), Merger Agreement (Lenco Mobile Inc.)
Stockholders’ Representative. (a) Generally. By executing The Stockholders, by signing this Agreement, each Stockholder designates designate ▇▇▇▇ ▇▇▇▇▇ or, in the event that ▇▇▇▇ ▇▇▇▇▇ is unable or unwilling to serve, ▇▇▇▇▇ ▇▇▇▇▇ (the "Stockholders' Representative") to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder USFloral shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 9 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Stock Purchase Agreement (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing Each holder of the Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is unable or unwilling to serve asserve, and designates ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Buyer shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 8 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) GenerallyEach Stockholder hereby appoints M▇. By executing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (, as such Stockholder’s representative to act as Representative for all purposes of this Agreement, the "Stockholders' Representative") to serve as, Escrow Agreement and the Stockholders' Representative accepts transactions contemplated hereby, with the right, in such designation ascapacity, in his discretion, to do any and all things and to execute any and all documents in such Stockholder’s place and stead, in any way which such Stockholder could do if personally present, in connection with this Agreement, the representative of each such Stockholder Escrow Agreement and as the attorney-in-fact and agent for and transactions contemplated thereby, including the authority on behalf of each such Stockholder, without giving notice to such Stockholder, to take any of the following actions:
(i) to accept on such Stockholder’s behalf any amount payable to such Stockholder under this Agreement or the Escrow Agreement;
(ii) to negotiate and otherwise deal with respect Buyer, in all respects;
(iii) to accept and give service of process and all other notices and other communications relating to this Agreement or the Escrow Agreement;
(xiv) to settle any dispute related relating to the terms of this Agreement or the Escrow Agreement;
(v) to execute any instrument or document that the Representative may determine is necessary or desirable in the exercise of his authority under this Agreement and power-of-attorney; and
(vi) to act in connection with all matters relating to this Agreement, the Escrow Agreement and the transactions contemplated thereby, including the power to employ auditors, attorneys and other Persons in connection therewith.
(b) Each Stockholder further agrees, as follows:
(i) Such Stockholder recognizes the inherent conflict of interest of M▇. ▇▇▇▇▇▇▇ ▇▇▇ as the Representative and as a continuing employee of Buyer and waives any claims with respect thereto;
(ii) the Representative (A) shall not incur any personal liability for acting in such capacity if in doing so he acts upon advice of counsel or otherwise acts in good faith, (B) shall not incur any personal liability for acting in such capacity in the absence of his willful misconduct, (C) may act upon any instrument or signature believed by him to be genuine and may assume that any Person purporting to give any notice or instruction under this Agreement or under any other related agreement or document believed by him to be authorized has been authorized to do so (D) shall not be responsible for the investment of any payments received from Buyer for the benefit of Stockholders, and (yE) shall be promptly reimbursed by Stockholders, pro rata for out-of-pocket expenses incurred by him in his capacity of Representative, and such expenses shall first be satisfied from any Closing Payment, Earnout Payment or Additional Earnout Payment paid by the taking Buyer and received by the Representative for the benefit of the Stockholders, prior to distribution of such payments to Stockholders; and
(iii) If M▇. ▇▇▇▇▇▇▇ ▇▇▇ is unable to serve or resigns as the Representative, the Stockholders may appoint from among their ranks a substitute Representative to replace M▇. ▇▇▇▇▇▇▇ ▇▇▇ which individual shall have all the powers and authority granted to M▇. ▇▇▇▇▇▇▇ ▇▇▇ by this Section 13.15. Buyer shall accept such substitute Representative without objection; provided, however, that M▇. ▇▇▇▇▇▇▇ ▇▇▇ shall continue to serve as the Representative until such substitute Representative has been appointed by the Stockholders' .
(c) At and after Closing, Buyer shall be entitled to deal exclusively with Representative of any and on all actions and the making of any decisions required or permitted to be taken by the Stockholders' Representative or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related matters relating to this Agreement, agree to, negotiatethe Escrow Agreement and the transactions contemplated hereby involving the Stockholders, or enter into settlements and compromises ofany of them, and demand arbitration and comply with orders of courts and awards of arbitrators with respect shall be entitled to claims related to this Agreement; rely conclusively (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment without further evidence of any of kind whatsoever) on any statements made by the foregoing. The Stockholders' Representative will have authority and power or documents executed or purported to and shall act be executed on behalf of any Stockholder with respect by the Representative, and on any other action taken or purported to be taken on behalf of any Stockholder by the Representative including the appropriate communication or delivery to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇ ▇▇▇ and in the event that he is unable or unwilling to serve, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to be the Stockholders' representative (the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements AppNet and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All notices, communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice, communication or writing so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Commerce One Inc)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇, or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ is unable or unwilling to serve asserve, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Parent shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Realty Information Group Inc)
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates ▇▇▇▇▇ ▇. ▇▇▇▇▇ or, in the event that ▇▇▇▇▇ ▇. ▇▇▇▇▇ is unable or unwilling to serve, now or in the future, ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") ▇▇▇▇▇, to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements Clarant and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of either Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and whether by the Buyer may rely upon any written decision, act, consent death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing virtue of the adoption of this AgreementAgreement by the Company’s stockholders, and without further action of any such stockholder, each Stockholder designates ▇▇stockholder shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Stockholders' Representative"and by execution of this Agreement such Person hereby accepts such appointment) to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and act as the Stockholders Representative under this Agreement in accordance with the terms of this Section 8.1 and (ii) the Stockholders Representative as agent and attorney-in-fact and agent for and on behalf of the stockholders of the Company (in their capacity as such), with full power of substitution, to act in the name, place and stead of each such Stockholder stockholder with respect to (x) any dispute related Section 2.4 and to this Agreementfacilitate the consummation of the transactions contemplated hereby, and (y) including the taking by the Stockholders' Stockholders Representative of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders' Stockholders Representative or under Section 2.4 (it being understood that the stockholders shall have no right to pursue any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act claim on behalf of any Stockholder Indemnified Parties in respect of the rights granted to Indemnified Parties under Section 5.10) and to accept on behalf of each stockholder service of process and any notices required to be served on the stockholders. 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 respect to an interest and is irrevocable, may be delegated by the dispositionStockholders 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 or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder matter by the Stockholders Representative hereunder shall be bound by binding on, and fully enforceable against, all actions stockholders. No bond shall be required of the Stockholders Representative, and the 64 Stockholders Representative shall receive no compensation for his services. The Stockholders Representative may designate another Person, upon whose instruction Parent and the Surviving Company shall be entitled to rely, without any investigation or inquiry, as having been taken and all documents executed by or not taken upon the Stockholders' authority of the Stockholders Representative.
(b) The Stockholders Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will shall not be liable to any such Stockholder stockholder for any act of the Stockholders Representative taken in good faith and in the absence exercise of willful misconduct his reasonable judgment and arising out of or fraud on in connection with the part acceptance or administration of 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 Stockholders' Representative and 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 to indemnify that the Stockholders Representative shall not be liable for, and hold may seek indemnification from the Stockholders' Representative harmless against stockholders for, any and all Losses including reasonable attorneys' fees damages incurred by the Stockholders' Stockholders Representative by reason (or any member thereof) while acting in good faith and in the exercise of it taking 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 omitting not taken by the Stockholders Representative in his capacity as such under or in connection with this Agreement, in each such case except to take the extent that any action pursuant to this Agreement other than Losses incurred as a such damages are the proximate result of willful misconduct the gross negligence or fraud on the part bad faith of the Stockholders' Stockholders Representative. Notices or communications to or from .
(c) From and after the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any Effective Time, a decision, act, consent or instruction of the Stockholders' Stockholders Representative with respect to Section 2.4 shall constitute a decision, act, consent or instruction decision of all Stockholders stockholders and shall be final, binding, binding and conclusive upon each such Stockholder. The Company stockholder, and the Buyer Parent may conclusively rely upon any written decision, act, consent or instruction of the Stockholders' Stockholders Representative as being the decision, act, consent or instruction of each and every Stockholderstockholder. Each Stockholder Parent is hereby releases the Buyer and the Company relieved from any liability to the Stockholders Representative or any stockholder for any acts done by either of them Parent in accordance with any written such decision, act, consent or instruction of the Stockholders' 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 their Affiliates, in which case such information may not be disclosed by the Stockholders Representative to the stockholders; provided, further, that with respect to any such sensitive and proprietary information, Parent and the Stockholders Representative shall work together in good faith to prepare a summary or abstract of such information that may be disclosed by the Stockholders Representative to the stockholders.
Appears in 1 contract
Sources: Merger Agreement (Kineta, Inc./De)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is unable or unwilling to serve asserve, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇ ▇. ▇▇▇▇▇▇ or, in the event that he is unable or unwilling to serve, now or in the future, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") , to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements Clarant and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of either Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and whether by the Buyer may rely upon any written decision, act, consent death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Organization (Luminant Worldwide Corp)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇ ▇. ▇▇▇▇ or, in the event that ▇▇▇▇▇ ▇. ▇▇▇▇ is unable or unwilling to serve, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Stockholders' Representative") to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingor by operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing this Agreement, each Each Stockholder designates hereby constitutes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇, ▇▇. as the Stockholders’ representative (the "“Stockholders' ’ Representative"”) to serve as, as his or her true and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the lawful attorney-in-fact (i) to give and agent for receive all notices and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking by the Stockholders' Representative of any and all actions and the making of any decisions communications required or permitted to be taken by the Stockholders' Representative or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power (ii) to agree to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, (iii) to negotiate, or agree and enter into settlements any amendments to this Agreement as per Section 7.2 of this Agreement, (iv) to select and compromises ofcommunicate to the Company the designees to serve on the Board as provided for in Section 2.1 hereof, and demand arbitration and comply with orders (v) to communicate to the Company any elections of courts and awards of arbitrators the Stockholders with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the registration rights provided for in Article 5 hereof. The Stockholders' ’ Representative related to this Agreement; and (iv) may take all actions necessary or appropriate in the judgment of the Stockholders' ’ Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power , each Stockholder agreeing to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be fully bound by all actions taken the acts, decisions and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part agreements of the Stockholders' ’ Representative taken and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action done pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representativeauthority herein granted. Notices or and communications to or from the Stockholders' ’ Representative shall constitute notice to or from each of the Stockholders. In the event that ▇▇. ▇▇▇▇▇ dies or becomes incapacitated, the Stockholders shall promptly select an alternate person to serve as the Stockholders’ Representative and shall promptly notify the Company of such selection. The Company may rely upon any applicable Stockholder. Any such decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' ’ Representative as being the decision, act, consent or instruction of each of and every Stockholderall of the Stockholders. Each Stockholder The Company is hereby releases the Buyer and the Company relieved from any liability to any Person for any acts done by either of them in accordance with any written such decision, act, consent or instruction of the Stockholders' ’ Representative.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing this Agreement, each Stockholder designates Loring Knoblauch is hereby appointed as representative (the "Stockhold▇▇▇' ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative▇▇ive") to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect the holders of Company Capital Stock to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the accomplishment of any the terms of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder No bond shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part required of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representativeshall receive no compensation for his services. Notices or 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 not be liable for any applicable Stockholderact 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 shall severally indemnify the Stockholders' Representative and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(c) 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 of all Stockholders and shall be final, binding, and conclusive upon each such Stockholderinstruction. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder Agere is hereby releases the Buyer and the Company relieved from any liability to any Person for any acts done by either of them it in accordance with any written such decision, act, consent or instruction of the Stockholders' Representative.
Appears in 1 contract
Sources: Merger Agreement (Agere Systems Inc)
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates H. ▇▇▇ ▇▇▇▇▇▇▇▇ or, in the event that H. ▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to serve, designates ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Stockholders' Representative") to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Buyer shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 8 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates Soro▇ ▇▇▇▇▇▇ (▇▇, in the event that Soro▇ ▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, Lawr▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking ). The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements UniCapital and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writing given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name, place and stea▇ ▇▇▇ on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of such Stockholder and the other Stockholders hereunder and in consideration of the Stockholders' Representative shall constitute a decisionmutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Unicapital Corp)
Stockholders’ Representative. (a) Generally. By executing Each Stockholder by signing this Agreement, each Stockholder Agreement designates Rich▇▇▇ ▇▇▇▇▇▇ ▇▇, in the event that Rich▇▇▇ (the "Stockholders' Representative") ▇. ▇▇▇▇▇▇ ▇▇ unable or unwilling to serve asserve, and Will▇▇▇ ▇▇▇▇, ▇▇ be the Stockholders' Representative accepts such designation asfor purposes of this Agreement. If Will▇▇▇ ▇▇▇▇ ▇▇ unable or unwilling to serve, the representative Stockholders who held a majority of each the Shares prior to Closing shall designate a Stockholders' Representative. By his or her execution of this agreement, such Stockholder covenants and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking agrees that he or she shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Purchaser shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent whether by death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or in the event that ▇▇▇▇▇▇ (the "Stockholders' Representative") ▇▇▇▇▇▇▇▇▇▇ is unable or unwilling to serve asserve, and ▇▇▇▇ ▇▇▇▇▇▇▇▇ to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting its name and on his or its behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingor by operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates Dona▇▇ ▇. ▇▇▇▇▇▇▇ (▇▇, in the event that Dona▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, Virg▇▇▇▇ ▇▇▇▇▇) ▇▇ be such Stockholders' representative for purposes of this Agreement (the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking ). The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements UniCapital and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writing given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name, place and stea▇ ▇▇▇ on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 12 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of such Stockholder and the other Stockholders hereunder and in consideration of the Stockholders' Representative shall constitute a decisionmutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be final, binding, irrevocable and conclusive upon each such Stockholder. The Company and the Buyer may rely upon shall not be terminated by any written decision, act, consent act of any Stockholder or instruction by operation of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativelaw.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Unicapital Corp)
Stockholders’ Representative. (a) Generally. By executing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (In accordance with Section 6.1 of the "Stockholders' Representative") to serve as, ---------------------------- Support Agreement and in accordance with the terms of the Share Exchange Offer and the Stockholders' Representative accepts such designation asrelated Form of Acceptance and Authority, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking Stockholders shall be bound 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 or any Stockholder under this Agreement, including on their behalf.
(a) O2DIESEL and the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Escrow Agent shall be bound by all actions taken and all documents entitled to rely upon any communication or writing given or executed by the Stockholders' Representative. All communications or writings to be sent to the 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.
(b) The Stockholders' Representative has been appointed and constitutes the true and lawful attorney-in-fact of each Stockholder, with full power in his/her/its name and on his/her/its behalf to act according to the terms of this Agreement in the absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing .
(c) Notwithstanding the functions specified in this Agreementforegoing, the Stockholders' Representative will not shall inform each Stockholder of all notices received, and of all actions, decisions, notices and exercises of any rights, power or authority proposed to be liable to any done, given or taken by such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and act as directed by the Buyer may rely upon any written decision, act, consent or instruction of Stockholders holding a majority interest in the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' RepresentativeEscrow Property.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇ ▇▇▇▇▇▇ or, in the event that ▇▇▇▇▇ ▇▇▇▇▇▇ is unable or unwilling to serve, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Stockholders' Representative") to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates Stan Pippin or, in the event that Stan Pippin is unable ▇▇ ▇▇▇▇▇▇▇ng to serve, designates ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") ▇er, to serve as, and be the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this p▇▇▇▇▇▇▇ ▇▇ ▇▇▇s Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Buyer shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to the Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 8 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each Stockholder, by signing this Agreement, each Stockholder designates James G. Corey or, in the event that James G. Corey is unable or ▇▇▇▇▇▇▇▇▇ ▇▇ serve, designates Sharon ▇▇▇▇▇, ▇▇ ▇▇ ▇▇e Stockholders' Representative for purposes of ▇▇▇▇ (the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking ▇▇▇▇▇▇ent. The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Buyer shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 8 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing The Stockholders, by signing this Agreement, each Stockholder designates designate Leslie Lees Jamison, or, in the event that Leslie Lees Jamison is un▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ serve, Henry D. Jami▇▇▇ (the "Stockholders' Representative") to serve as, and the ▇▇ ▇▇ ▇▇ ▇▇e Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking p▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇eement. The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder RIGINC shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' RepresentativeStockholders'Representative; and in general to 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. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholder hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Stockholders’ Representative. 6.01 The Stockholders, and each of them, hereby appoint Andrew Edwards (a) Generally. By executing this Agreement, each Stockholder designates the "Stockholders' ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative▇▇▇ve") as their agent to serve as(i) execute and deliver this Escrow Agreement on behalf of the Stockholders and to represent, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and as the attorney-in-fact and agent act for and on behalf of, and bind each of each such Stockholder with respect to (x) any dispute related the Stockholders in the performance of all of their obligations arising from or relating to this Escrow Agreement, and including, without limitation (ya) the taking execution and delivery of any document, certificate or agreement required under this Escrow Agreement to be delivered by the Stockholders' Representative ; (b) the negotiation and settlement of any claims of Vizacom in respect of the Escrowed Property and all actions for indemnification pursuant to Article VIII of the Merger Agreement and the making of any decisions required or permitted objection to be taken by such claims; and (c) the Stockholders' Representative or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative representation of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand Stockholders at any arbitration of, arbitrate, comply with or litigation in respect of the orders of courts and awards of arbitrators with respect to any such disputesforegoing; (ii) give and receive notices and communications, receive service of processprocess under or pursuant to this Escrow Agreement; and (iii) to represent, organize act for, and bind each of the Stockholders in the performance of all of their obligations arising from or assume the defense of claims related to this Escrow Agreement and the indemnification provisions of Article VIII of the Merger Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or . The Stockholders' Representative hereby accepts such appointment.
6.02 In the event that the Stockholders' Representative related shall die, become incapacitated, resign or otherwise by unable to this fulfill his duties hereunder, a successor Stockholders' Representative shall be selected by the Stockholders entitled to a majority of the Escrowed Property (to the extent not subject to any claim under Article VIII of the Agreement; and (iv) take all actions necessary in as Merger soon as reasonably practicable thereafter. If the judgment of Stockholders desire to remove or replace the Stockholders' Representative for the accomplishment of any of the foregoing. The reason, any such Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement may be so removed or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed replaced by the Stockholders' Representative in connection with any dispute arising under or related Stockholders entitled to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any receive a majority of such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable StockholderEscrowed Property. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction decision of all the Stockholders and shall be final, bindingconclusive and binding upon the Stockholders, and conclusive upon each such Stockholder. The Company Vizacom and the Buyer Escrow Agent may rely upon any written such decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 1 contract
Sources: Escrow Agreement (Vizacom Inc)
Stockholders’ Representative. (a) Generally. By executing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (At the "Stockholders' Representative") to serve as, and the Stockholders' Representative accepts such designation asEffective Time, the representative Representative shall be constituted and appointed as the Representative (on behalf of each such Stockholder of the Participating Stockholders). Each Participating Stockholder, by virtue of its adoption of this Agreement or acceptance of the Merger Consideration payable to the Participating Stockholder, shall be deemed to have appointed and constituted the Representative as the its agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. The Representative shall be the exclusive agent for and on behalf of each such Stockholder with respect the Participating Stockholders to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii1) give and receive notices and communications, receive service communications to or from Parent (on behalf of process, organize itself or assume any other Indemnified Person) relating to this Agreement or any of the defense other Transactions; (2) authorize deliveries to Parent of the Holdback Shares and legally bind each Participating Stockholder to deliver Holdback Shares directly to Parent in satisfaction of claims related for indemnifiable Damages by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to this Agreement, such claims); (3) object to such claims in accordance with Section 8.7; (4) consent or agree to, negotiate, or mediate, enter into settlements and compromises of, and demand arbitration institute litigation and comply with orders of courts and awards of arbitrators Orders with respect to claims related to this Agreementto, such claims; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv5) take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, and (6) subject to Section 9.7, execute for and on behalf of each Participating Stockholder any amendment to this Agreement or any exhibit, annex or schedule hereto (including for the purpose of amending addresses or sharing percentages). This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnitor or by operation of Law, whether by the death or incapacity of any Indemnitor or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Participating Stockholder or the Representative will have received any notice thereof.
(b) The Representative shall be the sole and exclusive means of asserting or addressing any of the foregoing. The Stockholders' Representative will above, and no Participating Stockholder shall have authority and power any right to and shall act on its own behalf of any Stockholder with respect to any such matters, other than any claim or dispute against the dispositionRepresentative. Any notice or communication given or received by, settlement or other handling of any dispute and any other rights decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreementinstruction of, the Stockholders' Representative will not be liable to any such Stockholder in that is within the absence of willful misconduct or fraud on the part scope of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as Representative’s authority under Section 8.10(a) (a result of willful misconduct or fraud on the part of the Stockholders' “Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative ’s Decision”) shall constitute a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all Participating Stockholders and shall be final, binding, binding and conclusive upon each such Stockholderof them. The Company Parent and the Buyer may each Indemnified Person shall be entitled to rely upon any written Representative’s Decision as being a notice or communication to or by, or a decision, actaction, consent failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders' Representative as being the decisionof, act, consent or instruction of each and every Participating Stockholder. Each Stockholder hereby releases the Buyer Parent and the Company each Indemnified Person are unconditionally and irrevocably relieved from any liability to any Person for any acts done by either of them in accordance with any written decision, act, consent or instruction Representative’s Decision. A notice by Parent to the Representative shall constitute a notice to each Participating Stockholder.
(c) The agency of the Representative may be changed, and the Person serving as the Representative may be replaced from time to time, by the vote or consent of such number of Participating Stockholders representing a majority of the Aggregate Participating Stockholder Percentage of all Participating Stockholders upon not less than ten days’ prior written notice to Parent. A vacancy in the position of the Representative may be filled by the vote or consent of Participating Stockholders representing a majority of the Aggregate Participating Stockholder Percentage of all Participating Stockholders' . If the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Participating Stockholders, other than the Representative, representing a majority of the Aggregate Participating Stockholder Percentage of all Participating Stockholders, other than the Representative, will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. In the event of a vacancy in the position of the Representative, or refusal or incapability of the Representative to serve, which continues for more than 90 days, Parent may appoint a successor Representative who will thereafter be a successor Representative hereunder until a successor is duly appointed and qualified to act hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each Participating Stockholder at their address last known to Parent, which will be the address set forth in the Spreadsheet unless Representative provides notice to Parent of a different address in the manner described in Section 9.3.
(d) All expenses, if any, incurred by the Representative in connection with the performance of his duties as the Representative (the “Representative Expenses”) will be borne and paid by the Participating Stockholders according to their respective Participating Stockholder Percentages. No bond will be required of the Representative, and the Representative will not receive any compensation for its services. The Representative shall also be entitled to advances against Representative Expenses from the Expense Fund, in the judgment and discretion of the Representative. Representative Expenses will be paid first using amounts on deposit in the Expense Fund, second out of any amounts that would otherwise be distributed to the Participating Stockholders out of the Holdback Shares, and third directly by the Participating Stockholders promptly against presentation of an invoice by the Representative. The Representative is hereby authorized to withdraw all or any portion of the Expense Fund and to withhold, or cause to be withheld and paid to the Representative, amounts that would otherwise be distributed to the Participating Stockholders, in each case to pay for any Representative Expenses.
(e) The Representative shall not be liable to any Participating Stockholder for any act done or omitted hereunder as the Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The Participating Stockholders shall jointly and severally indemnify the Representative and hold the Representative harmless against any Damages incurred without gross negligence or bad faith on the part of the Representative and arising out of or in connection with the acceptance or administration of the Representative’s duties hereunder.
(f) The Representative shall have reasonable access to information about the Surviving Corporation and the reasonable assistance, to the extent they remain employed by the Company, of the officers and employees of the Company who were employed by the Company prior to the Effective Time for purposes of performing the Representative’s duties and exercising the Representative’s rights hereunder, except that no Indemnified Person shall be required to provide any information that is subject to a legal privilege or a protective Order or the disclosure of which would violate any Laws. The Representative shall treat confidentially and not use or disclose the terms of this Agreement, any Related Agreement or any nonpublic information from or about Parent, Surviving Corporation or any Indemnified Person to anyone, except that the Representative may disclose the terms or information to the Participating Stockholders or the Representative’s employees, attorneys, accountants, financial advisors, agents or authorized representatives on a need-to-know basis, as long as the Person agrees to treat such information confidentially. If requested by Parent, the Representative shall enter into a separate confidentiality agreement before being provided access to such information.
(g) The initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement.
(h) Within thirty (30) Business Days following the date that is the later of (i) the final determination that any Contingent Consideration is payable under Section 1.9 or (ii) the Claim Period Expiration Date, any remaining balance of the Expense Fund, less a reasonable reserve as reasonably determined by the Representative for estimated Representative Expenses arising out of this Agreement, shall be released by the Representative and paid to each Participating Stockholder pro rata in accordance with each Participating Stockholder’s Participating Stockholder Percentage of such remaining Expense Fund in accordance with the instructions set forth in the Spreadsheet.
Appears in 1 contract
Stockholders’ Representative. The execution, delivery and performance by the Stockholders' Representative (aon behalf of the Selling Stockholders) Generallyof 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. By executing this AgreementEach 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 constitutes the legal, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (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 his, her or its representative, agent and attorney-in fact to serve asenter into the Transaction Documents and to perform all of such Selling Stockholder's obligations and to exercise all of such Selling Stockholder's rights thereunder pursuant to a validly executed appointment hereunder, and the Stockholders' Representative accepts such designation as, the representative of has accepted each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoingappointment. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any A decision, act, consent or instruction of the Stockholders' Representative relating to the Transaction Documents shall constitute a decision, act, consent or instruction of all Stockholders decision for each Selling Stockholder and shall be final, binding, binding and conclusive upon each such Selling Stockholder. The Company , and the Buyer Parent may conclusively rely upon any written such decision, act, consent or instruction of the Stockholders' Stockholder Representative as being the decision, act, consent or instruction of each and every Selling Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing this AgreementPursuant to the Stockholders Approval dated on or about the date hereof, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇ (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 Stockholders' ’ Representative") to serve as, for the benefit of the Equityholders and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder exclusive agent and as the attorney-in-fact to act on behalf of each Equityholder, in connection with and agent to facilitate the consummation of the transactions contemplated hereby, which shall include the power and authority: (i) to negotiate, execute and deliver such waivers, consents and amendments under this Agreement and the consummation of the transactions contemplated hereby as the Stockholders’ Representative, in its sole discretion, may deem necessary or desirable; (ii) as the Stockholders’ Representative, to enforce and protect the rights and interests of the Equityholders and to enforce and protect the rights and interests of such Persons arising out of or under or in any manner relating to this Agreement and the transactions provided for herein, and to take any and all actions which the Stockholders’ Representative believes are necessary or appropriate under this Agreement for and on behalf of each the Equityholders including, consenting to, compromising or settling any such Stockholder claims, conducting negotiations with Parent, the Surviving Corporation and their respective Representatives regarding such claims, and, in connection therewith, to (A) assert any claim or institute any Action or investigation; (B) investigate, defend, contest or litigate any Action or investigation initiated by Parent, the Surviving Corporation or any other Person, or by any Governmental Entity against the Stockholders’ Representative and/or any of the Equityholders, and receive process on behalf of any or all Equityholders in any such Action or investigation and compromise or settle on such terms as the Stockholders’ Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Action or investigation; (C) file any proofs of debt, claims and petitions as the Stockholders’ Representative may deem advisable or necessary; (D) settle or compromise any claims asserted under this Agreement; and (E) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation, it being understood that the Stockholders’ Representative shall not have any obligation to take any such actions, and shall not have any liability for any failure to take any such actions; (xiii) to waive or refrain from enforcing any dispute related right of the Equityholders arising out of or under or in any manner relating to this Agreement; provided, however, that such waiver is in writing signed by the Stockholders’ Representative; (iv) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement; (v) to engage outside counsel, accountants and other advisors and incur such other expenses on behalf of the Equityholders in connection with any matter arising under this Agreement; and (vi) to collect, hold and disburse the Purchase Price Adjustment Holdback Amount and the Expense Holdback Amount in accordance with the terms of this Agreement.
(b) The Stockholders’ Representative shall be entitled to receive reimbursement from, and be indemnified by, the Equityholders for certain expenses, charges and liabilities as provided below. In connection with this Agreement, and in exercising or failing to exercise all or any of the powers conferred upon the Stockholders’ Representative hereunder, (yi) the taking Stockholders’ Representative shall incur no responsibility whatsoever to any Equityholders by reason of any act or omission performed or omitted hereunder, excepting only responsibility for any act or failure to act which represents willful misconduct, and (ii) the Stockholders' ’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any act or omission of the Stockholders’ Representative pursuant to such advice shall in no event subject the Stockholders’ Representative to liability to any Equityholders. Each Equityholder shall indemnify, severally and not jointly, based on such Equityholder’s pro rata share of Merger Consideration received by such Equityholder, the Stockholders’ Representative against all losses, damages, liabilities, claims, obligations, costs and expenses, including reasonable attorneys’, accountants’ and other experts’ fees and the amount of any judgment against them, of any nature whatsoever, arising out of or relating to any acts or omissions of the Stockholders’ Representative hereunder. The foregoing indemnification shall not apply in the event of any Action which finally adjudicates the liability of the Stockholders’ Representative hereunder for its willful misconduct. The Stockholders’ Representative shall have the right to recover, at its sole discretion, from the Expense Holdback Amount, prior to any distribution to the Equityholders, any amounts to which it is entitled pursuant to the expense reimbursement and indemnification provisions of this Section 8.15(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 and the making of any decisions required taken or permitted omitted to be taken by the Stockholders' ’ Representative or any Stockholder under pursuant to this Agreement, including all of which actions or omissions shall be legally binding upon the exercise 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 of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; payments.
(e) The grant of authority provided for herein (i) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Equityholder and (ii) give and receive notices and communications, receive service shall survive the consummation of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises ofMerger, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or action taken by the Stockholders' ’ Representative related pursuant to the authority granted in this Agreement; Agreement shall be effective and (iv) take all binding on each Equityholder notwithstanding any contrary action of or direction from such Equityholder, except for actions necessary in the judgment or omissions of the Stockholders' ’ Representative constituting willful misconduct.
(f) Each of the Company, Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative is a party to this Agreement solely to perform certain administrative functions in connection with the consummation of the transactions contemplated hereby. Accordingly, each of the Company, Merger Sub and Parent acknowledges and agrees that the Stockholders’ Representative shall have no liability to, and shall not be liable for the accomplishment of any losses of, any of the foregoing. The Company, Merger Sub or Parent in connection with any obligations of the Stockholders' ’ Representative will have authority and power to and shall act on behalf under this Agreement or otherwise in respect of any Stockholder with respect this Agreement or the transactions contemplated hereby, except to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder extent such losses shall be bound by all actions taken and all documents executed proven to be the direct result of willful misconduct by the Stockholders' ’ Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence performance of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeits obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (Jarden Corp)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is unable or unwilling to serve asserve, and now or in the future, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements Clarant and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of either Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and whether by the Buyer may rely upon any written decision, act, consent death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Organization (Luminant Worldwide Corp)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates Rice or, in the event that Rice is unable or unwilling to serve, now or in the future, ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") , to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements Clarant and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of either Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and whether by the Buyer may rely upon any written decision, act, consent death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Organization (Luminant Worldwide Corp)
Stockholders’ Representative. (a) Generally. By executing this AgreementAt the Effective Time, each Stockholder designates Charles Rendelman shall be constituted ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (as the "Stockholders' Representative") to serve as, and the . The Stockholders' Representative accepts such designation as, shall be the representative of each such Stockholder and as the attorney-in-fact and exclusive agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power Stockholders to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service communications to or from Parent (on behalf of process, organize itself or assume any other Indemnified Person) and/or the defense of claims related Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby, (ii) to the extent that the Escrow Fund is used to indemnify Parent, authorize deliveries to Parent of amounts from the Escrow Fund in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims), (iii) object to claims in accordance with the provisions hereof and the Escrow Agreement, (iv) consent or agree to, negotiate, or enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; to, claims, and (ivv) take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Stockholders' Representative will shall be the sole and exclusive means of asserting or addressing any of the above, and no former stockholder shall have authority and power any right to and shall act on its own behalf of any Stockholder with respect to any such matters, other than any claim or dispute against the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this AgreementStockholders' Representative. Each Stockholder shall be bound by all actions taken and all documents executed by The Person serving as the Stockholders' Representative in connection with any dispute arising under or related may be 41 replaced from time to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and time by the Stockholders agree upon not less than ten days' prior written notice to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part 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 stockholders and option holders of Target immediately prior to the Effective Time.
(b) The Stockholders' Representative shall not be liable to any applicable StockholderStockholder for any act done or omitted hereunder as the Stockholders' Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. Any decisionThe Stockholders shall severally indemnify the Stockholders' Representative and hold him harmless against any loss, act, consent liability or instruction expense incurred without gross negligence or bad faith on the part of the Stockholders' Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
(c) The Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company have reasonable access to information about Target and the Buyer may rely upon any written decisionreasonable assistance of Target's former officers and employees for purposes of performing his duties and exercising its rights hereunder, act, consent or instruction of PROVIDED that the Stockholders' Representative as being the decision, act, consent shall treat confidentially and not disclose any nonpublic information from or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeabout Target to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable or unwilling to serve asserve, and now or in the future, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements Clarant and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under or related Representative. All notices to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and any notice so sent shall be deemed notice to all of the Stockholders hereunder. The Stockholders hereby consent and agree to indemnify and hold that the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by is authorized to accept notice on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of either Stockholder, bindingby operation of law, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent whether by death or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Organization (Luminant Worldwide Corp)
Stockholders’ Representative. (a) Generally. By executing The Stockholder, by signing this Agreement, each Stockholder designates John ▇. ▇▇▇▇▇▇, (▇r, in the event that John ▇. ▇▇▇▇▇▇ ▇▇ unable or unwilling to serve, or resigns, Robe▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ) to be such Stockholder's Representative for purposes of this Agreement (the "Stockholders' Stockholder's Representative"). The Stockholder shall be bound by any and all actions taken by the Stockholder's Representative on his behalf.
(b) UniCapital and Newco shall be entitled to serve asrely upon any communication or writing given or executed by the Stockholder's Representative. All communications or writings to be sent to the Stockholder pursuant to this Agreement may be addressed to the Stockholder's Representative and any communication or writing so sent shall be deemed notice to the Stockholder hereunder. The Stockholder hereby consents and agrees that the Stockholder's Representative is authorized to accept deliveries, including any notice, on behalf of the Stockholder pursuant hereto.
(c) The Stockholder's Representative is hereby appointed and constituted the Stockholders' Representative accepts such designation as, the representative of each such Stockholder true and as the lawful attorney-in-fact and agent for of the Stockholder, with full power in his name and on his behalf to act according to the terms of each such Stockholder this Agreement in the absolute discretion of the Stockholder's Representative, and in general to 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 respect to (x) any dispute related to Article 12 of this Agreement. This power of attorney and all authority hereby conferred is granted subject to and coupled with the interest of the Stockholder hereunder and in consideration of the mutual covenants and agreements made herein, and shall be irrevocable and shall not be terminated by any act of the Stockholder, by operation of law, whether by such Stockholder's death or any other event.
(yd) Notwithstanding the taking by foregoing, the Stockholders' Stockholder's Representative shall inform the Stockholder of all notices received, and of all actions, decisions, notices and exercises of any and all actions and the making of any decisions required rights, power or permitted authority proposed to be done, given or taken by the Stockholders' Representative or any Stockholder under this Agreementsuch Stockholder's Representative, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder shall be bound by all actions taken and all documents executed as directed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part of the Stockholders' Representative and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representative. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction of the Stockholders' Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representative.
Appears in 1 contract
Sources: Agreement and Plan of Contribution (Unicapital Corp)
Stockholders’ Representative. (a) Generally. By executing Each holder of Company Common Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇ ▇▇▇▇▇ or, in the event that ▇▇▇▇ ▇▇▇▇▇ is unable or unwilling to serve, ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Stockholders' Representative") to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing Each holder of Partner Common Stock and each Beneficial Owner, by signing this Agreement, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇ or, in the "Stockholders' Representative") event that ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ is unable or unwilling to serve asserve, and ▇▇▇▇▇ ▇▇▇▇ to be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, . The Stockholders and (y) the taking Beneficial Owners shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements USFloral and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Newco shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative, and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 10 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from and coupled with the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder, bindingby operation of law, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Stockholders’ Representative. (a) Generally. By executing virtue of the adoption of this AgreementAgreement by the Company’s stockholders, and without further action of any such stockholder, each Stockholder designates ▇▇stockholder shall be deemed to have irrevocably constituted and appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Stockholders' Representative"and by execution of this Agreement such Person hereby accepts such appointment) to serve as, and the Stockholders' Representative accepts such designation as, the representative of each such Stockholder and act as the Stockholders Representative under this Agreement in accordance with the terms of this Section 8.1 and (ii) the Stockholders Representative as agent and attorney-in-fact and agent for and on behalf of the stockholders of the Company (in their capacity as such), with full power of substitution, to act in the name, place and stead of each such Stockholder stockholder with respect to (x) any dispute related Section 2.4 and to this Agreementfacilitate the consummation of the transactions contemplated hereby, and (y) including the taking by the Stockholders' Stockholders Representative of any and all actions and the making of any decisions required or permitted to be taken by the Stockholders' Stockholders Representative or under Section 2.4 (it being understood that the stockholders shall have no right to pursue any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act claim on behalf of any Stockholder Indemnified Parties in respect of the rights granted to Indemnified Parties under Section 5.10) and to accept on behalf of each stockholder service of process and any notices required to be served on the stockholders. 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 respect to an interest and is irrevocable, may be delegated by the dispositionStockholders 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 or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder matter by the Stockholders Representative hereunder shall be bound by binding on, and fully enforceable against, all actions stockholders. No bond shall be required of the Stockholders Representative, and the Stockholders Representative shall receive no compensation for his services. The Stockholders Representative may designate another Person, upon whose instruction Parent and the Surviving Company shall be entitled to rely, without any investigation or inquiry, as having been taken and all documents executed by or not taken upon the Stockholders' authority of the Stockholders Representative.
(b) The Stockholders Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will shall not be liable to any such Stockholder stockholder for any act of the Stockholders Representative taken in good faith and in the absence exercise of willful misconduct his reasonable judgment and arising out of or fraud on in connection with the part acceptance or administration of 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 Stockholders' Representative and 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 to indemnify that the Stockholders Representative shall not be liable for, and hold may seek indemnification from the Stockholders' Representative harmless against stockholders for, any and all Losses including reasonable attorneys' fees damages incurred by the Stockholders' Stockholders Representative by reason (or any member thereof) while acting in good faith and in the exercise of it taking 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 omitting not taken by the Stockholders Representative in his capacity as such under or in connection with this Agreement, in each such case except to take the extent that any action pursuant to this Agreement other than Losses incurred as a such damages are the proximate result of willful misconduct the gross negligence or fraud on the part bad faith of the Stockholders' Stockholders Representative. Notices or communications to or from .
(c) From and after the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any Effective Time, a decision, act, consent or instruction of the Stockholders' Stockholders Representative with respect to Section 2.4 shall constitute a decision, act, consent or instruction decision of all Stockholders stockholders and shall be final, binding, binding and conclusive upon each such Stockholder. The Company stockholder, and the Buyer Parent may conclusively rely upon any written decision, act, consent or instruction of the Stockholders' Stockholders Representative as being the decision, act, consent or instruction of each and every Stockholderstockholder. Each Stockholder Parent is hereby releases the Buyer and the Company relieved from any liability to the Stockholders Representative or any stockholder for any acts done by either of them Parent in accordance with any written such decision, act, consent or instruction of the Stockholders' 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 their Affiliates, in which case such information may not be disclosed by the Stockholders Representative to the stockholders; provided, further, that with respect to any such sensitive and proprietary information, Parent and the Stockholders Representative shall work together in good faith to prepare a summary or abstract of such information that may be disclosed by the Stockholders Representative to the stockholders.
Appears in 1 contract
Stockholders’ Representative. (a) Generally. By executing this AgreementAt the Effective Time, each Stockholder designates ▇▇▇▇▇▇▇ ▇▇▇▇▇ (shall be constituted and appointed as the "Stockholders' Stockholders Representative") to serve as. Each Indemnifying Stockholder, by virtue of his approval of this Agreement, and by virtue of the Stockholders' approval of this Agreement by the Required Vote, shall be deemed to have appointed and constituted the Stockholders Representative accepts such designation as, the representative of each such Stockholder as their agent and as the true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. The Stockholders Representative shall be the exclusive agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power Stockholders to: (i) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service communications to or from Parent (on behalf of process, organize itself or assume any other Indemnified Person) and/or the defense of claims related Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matters contemplated hereby or thereby; (ii) provide endorsements for transfer of, and authorize deliveries to Parent of, Parent Common Stock, cash or other property from the Escrow Fund in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (iii) object to and defend against such claims by Parent; (iv) consent or agree to, negotiate, or enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreementto, such claims; and (ivv) take all actions necessary or appropriate in the judgment of the Stockholders' Stockholders Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Stockholders Representative shall be the sole and exclusive means of asserting or addressing any of the foregoing. The Stockholders' Representative will above and no Stockholder of the Company shall have authority and power any right to and shall act on its own behalf of any Stockholder with respect to any such matters, other than any claim or dispute against the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this AgreementStockholders Representative. Each Stockholder No bond shall be bound by all actions taken and all documents executed by the Stockholders' Representative in connection with any dispute arising under or related to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not be liable to any such Stockholder in the absence of willful misconduct or fraud on the part required of the Stockholders' Representative Stockholders Representative, and the Stockholders agree to indemnify and hold the Stockholders' Representative harmless against any and all Losses including reasonable attorneys' fees incurred by the Stockholders' Representative by reason of it taking any action or omitting to take any action pursuant to this Agreement other than Losses incurred as a result of willful misconduct or fraud on the part of the Stockholders' Representativeshall receive no compensation for his services. Notices or communications to or from the Stockholders' Stockholders Representative shall constitute notice to or from any applicable each Stockholder. Any decision, act, consent or instruction of the Stockholders' .
(b) The Stockholders Representative shall constitute a decision, act, consent or instruction of all Stockholders and shall not be final, binding, and conclusive upon each such Stockholder. The Company and the Buyer may rely upon liable to any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts act done by either of them or omitted hereunder as the Stockholders Representative while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The Stockholder shall severally indemnify the Stockholders Representative and hold him harmless against any written decisionloss, act, consent liability or instruction expense incurred without gross negligence or bad faith on the part of the Stockholders' RepresentativeStockholders Representative and arising out of or in connection with the acceptance or administration of his duties hereunder.
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Stockholders’ Representative. (a) Generally. By executing Each holder of the Stock, by signing this Agreement, each Stockholder designates ▇▇▇▇▇ ▇▇▇▇▇ or, in the event that ▇▇▇▇▇ ▇▇▇▇▇ is unable or unwilling to serve, designates ▇▇▇▇▇▇▇ ▇▇▇▇ (the "Stockholders' Representative") ▇, to serve as, and be the Stockholders' Representative accepts such designation as, the representative for purposes of each such Stockholder and as the attorney-in-fact and agent for and on behalf of each such Stockholder with respect to (x) any dispute related to this Agreement, and (y) the taking . The Stockholders shall be bound 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 or any Stockholder under this Agreement, including the exercise by the Stockholders' Representative of the power to: on their behalf.
(ib) initiate, negotiate, enter into resolutions, settlements and compromises of, demand arbitration of, arbitrate, comply with the orders of courts and awards of arbitrators with respect to any such disputes; (ii) give and receive notices and communications, receive service of process, organize or assume the defense of claims related to this Agreement, agree to, negotiate, or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to claims related to this Agreement; (iii) receive any funds due any Stockholder or the Stockholders' Representative related to this Agreement; and (iv) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of any of the foregoing. The Stockholders' Representative will have authority and power to and shall act on behalf of any Stockholder with respect to the disposition, settlement or other handling of any dispute and any other rights or obligations arising under or related to this Agreement. Each Stockholder Buyer shall be bound by all actions taken and all documents entitled to rely upon any communication or writings given or executed by the Stockholders' Representative in connection with any dispute arising under Representative. All communications or related writings to be sent to Stockholders pursuant to this Agreement. Each Stockholder acknowledges and agrees that in performing the functions specified in this Agreement, the Stockholders' Representative will not Agreement may be liable addressed to any such Stockholder in the absence of willful misconduct or fraud on the part of 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 to indemnify and hold that the Stockholders' Representative harmless against is authorized to accept deliveries, including any and all Losses including reasonable attorneys' fees incurred by notice, on behalf of the Stockholders pursuant hereto.
(c) The Stockholders' Representative by reason is hereby appointed and constituted the true and lawful attorney-in-fact of it taking any action each Stockholder, with full power in his or omitting her name and on his or her behalf to take any action pursuant act according to the terms of this Agreement other than Losses incurred as a result of willful misconduct or fraud on in the part absolute discretion of the Stockholders' Representative; and in general to do all things and to perform all acts including, without limitation, executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by or deemed advisable in connection with Article 8 of this Agreement. Notices or communications This power of attorney and all authority hereby conferred is granted subject to or from the Stockholders' Representative shall constitute notice to or from any applicable Stockholder. Any decision, act, consent or instruction interest of the Stockholders' Representative shall constitute a decisionother Stockholders hereunder and in consideration of the mutual covenants and agreements made herein, act, consent or instruction of all Stockholders and shall be finalirrevocable and shall not be terminated by any act of any Stockholder or by operation of law, binding, and conclusive upon each whether by such Stockholder. The Company and the Buyer may rely upon 's death or any written decision, act, consent or instruction of the Stockholders' Representative as being the decision, act, consent or instruction of each and every Stockholder. Each Stockholder hereby releases the Buyer and the Company from any liability for any acts done by either of them in accordance with any written decision, act, consent or instruction of the Stockholders' Representativeother event.
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