Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative"). (b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto. (c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b); (ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement; (iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same; (iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative; (v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative; (vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and (viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer By the transactions contemplated herebyadoption of the Merger, and by receiving the benefits thereof, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreementany consideration payable hereunder, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative each Company Stockholder shall be deemed to a have appointed, and Shareholder Representative Services LLC is hereby appointed by the Company Stockholders' Representative , as of the Closing, as representative, agent and attorney-in-fact for each Company Stockholder for all purposes of in connection with this Agreement and the documents delivered pursuant agreements ancillary hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iva) to give and receive all notices required and communications to be given Parent for any purpose under this Agreement after and the Transaction Documents, (b) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any disputes arising under or related to this Agreement, (c) to act on behalf of Company Stockholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger, and (d) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Stockholders’ Representative may resign at any time, and such agency may be changed by the Company Stockholders from time to time upon no less than twenty (20) days prior written notice to Parent; provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all of the Company Shares outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Shares outstanding immediately prior to the Effective Time. Any removal or change of the Stockholders’ Representative shall not be effective until written notice is delivered to Parent. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Company Stockholders. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Company Stockholders and shall be final, binding and conclusive upon each of the Company Stockholders. The Stockholders’ Representative will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders, on a several basis in accordance with each Company Stockholder’s pro rata right to receive Earnout Shares, shall indemnify the Stockholders’ Representative against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (v“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to take have been caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund and (ii) any and all additional action other funds that become payable to the Company Stockholders under this Agreement at such time as is contemplated such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Representative may be taken by paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Company Stockholders after or otherwise. Notwithstanding anything in this Agreement to the Effective Time by contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the terms recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the termination of this Agreement;
. Upon the Closing, Parent will wire $100,000 (iiithe “Expense Fund”) All decisions and actions to the Stockholders’ Representative, which will be used for any expenses incurred by the Stockholders' ’ Representative pursuant to this Agreement. Parent, the Company and the Company Stockholders shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest not receive any interest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively earnings on the instructions Expense Fund and decisions irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders' Representative as to any other actions required or permitted to be taken by ’ Representative’s responsibilities, the Stockholders' ’ Representative hereunder, and no party shall have deliver any cause of action against Parent to the extent Parent has relied upon the instructions or decisions remaining balance of the Stockholders' Representative;
(v) all actions, decisions and instructions of Expense Fund to Parent. The parties agree that the Stockholders' ’ Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative is not responsible for any action taken, decision made tax reporting or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have withholding in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach distribution of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7Expense Fund.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer By virtue of the transactions contemplated hereby, including (i) approval of the ability to take all action necessary against Parent in connection with breaches Merger and this Agreement by the requisite vote of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Company Stockholders, each of the Company Stockholders hereby desire shall be deemed to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇have agreed to appoint JMI Equity Fund, MD, L.P. as their representative agent (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority for and on behalf of the outstanding Shares shall select another representative Company Stockholders, their respective Affiliates and their respective representatives to fill such vacancy andgive and receive notices and communications, upon written notice to Parentorganize or assume the defense of third-party claims, such substituted representative shall be deemed to a assign claims to individual Company Stockholders, to agree to, negotiate or enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to third-party claims, and to take all actions necessary or appropriate in the judgment of the Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue accomplishment of the adoption foregoing. Such agency may be changed by the holders of this Agreement and the approval rights to receive at least sixty percent (60%) of the Merger by the Stockholders at a meeting Consideration upon not less than ten (10) days' prior written notice to Itron. No bond shall be required of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and the Stockholders' Representative shall receive no compensation for services rendered; provided, however, that they shall be entitled to reimbursement of their expenses in serving as Stockholders' Representative, which amounts shall be deducted from the Escrow. Notices or communications to or from the Stockholders' Representative shall constitute notice to or from the Company Stockholders.
(b) The Stockholders' Representative shall not be liable to any substitute of the Company Stockholders for any act done or omitted hereunder as Stockholders' Representative except to the extent they individually or collectively acted with gross negligence or willful misconduct, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence that the Stockholders' Representative did not act with gross negligence or willful misconduct. The Company Stockholders shall severally and proportionately indemnify the Stockholders' Representative and hold them harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stockholders' Representative and arising out of or in connection with the acceptance or administration of the duties hereunder.
(c) The Stockholders' Representative shall have reasonable access to information about the former Company Business and operations and the reasonable assistance of Itron's officers and employees for purposes of performing the duties and exercising the rights hereunder; provided, that the Stockholders' Representative shall treat confidentially and not disclose any nonpublic information from or about Itron to anyone (except on a need to know basis to individuals who agree to treat such information confidentially). The Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement a third party beneficiary of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.710.7(c).; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Itron Inc /Wa/)
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger and this Agreement by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant toStockholders, and in accordance with, the applicable provisions each of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative Stockholders shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time deemed to approve any settlement of claims by holders of Dissenters' Rights, (ii) have agreed to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine appoint the Stockholders to whom consideration from Parent shall be distributed Representative as its agent and the amount of consideration to be so distributedattorney-in-fact and as stockholder representative, (iv) to give for and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after to hold the Effective Time Note for the account of the Stockholders in accordance with the Merger Consideration Allocation Schedule, to give and receive notices and communications, to authorize payment to any Parent indemnified party from the Escrow Account in satisfaction of claims by any Parent indemnified party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent indemnified party against any Stockholder or by any such Stockholder against any indemnified party or any dispute between any indemnified party and any such Stockholder, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have including in connection with the transactions contemplated by determination of the Company Estimated Net Working Capital and the Company Closing Net Working Capital and the payment of any Company Shortfall in Sections 2.03, 2.04 and 2.05 of this Agreement;
. Such agency may be changed by the Stockholders from time to time upon not less than thirty (vii30) remedies available at law for days prior written notice to Parent; provided, however, that the Stockholder Representative may not be removed or any breach change to the agency made unless holders of a majority in interest of the provisions Escrow Account agree to such removal and to the identity of this Section 3.7the substituted agent or such change. are inadequate; thereforeNotwithstanding the foregoing, Parent, Merger Subsidiary and/or a vacancy in the Surviving Corporation position of Stockholder Representative may be filled by the holders of a majority in interest of the Escrow Account. No bond shall be entitled to temporary and permanent injunctive relief without required of the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trusteesStockholder Representative, and successors of each Stockholder, and the Stockholder Representative shall not receive any references in this Agreement compensation for his services. Notices or communications to a or from the Stockholder Representative shall constitute notice to or from the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseStockholders.
Appears in 1 contract
Sources: Merger Agreement (Authentec Inc)
Stockholders’ Representative. (a) In order to efficiently administer By executing the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCLStockholder Support Agreements, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement irrevocably constitutes and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the true and lawful agent and attorney-in-fact (hereinafter referred to as the "STOCKHOLDERS' REPRESENTATIVE") of each Stockholder, with full powers of substitution, to act in the name, place and stead of each Stockholder with respect to the Merger in accordance with the provisions of this Agreement and the Escrow Agreement, and to do or refrain from doing all such further acts and things, to execute all such certificates, instruments and other documents, as such Stockholders' Representative may deem necessary or appropriate in connection with any of the transactions contemplated under this Agreement or the Escrow Agreement, to give and receive notices and communications, to authorize delivery to Parent of the Escrow Shares or other property from the Escrow Account in satisfaction of claims by Parent, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims and to take all actions necessary or appropriate in the judgment of the Stockholders' Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to time upon not less than thirty days prior written notice to Parent; PROVIDED, HOWEVER, that the Stockholders' Representative may not be removed unless holders of a two-thirds interest in the Escrow Account agree to such removal and to the identity of the substituted stockholders' representative. Any vacancy in the position of Stockholders' Representative may be filled by approval of the holders of a majority in interest of the Escrow Account.. The Stockholders agree that any such action, if material to the rights and obligations of the Stockholders in the reasonable judgment of the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth taken in Section 3.7.(b);
(ii) the same manner with respect to all Stockholders, unless otherwise agreed by each Stockholders. The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions appointment of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and deemed coupled with an interest and shall be enforceable notwithstanding irrevocable, and Parent and any other person may conclusively and absolutely rely, without inquiry, upon any actions of the Stockholders' Representative as the act of Stockholders in all matters referred to in this Agreement.
(b) The Stockholders' Representative shall not be liable for any act done or omitted hereunder as Stockholders' Representative while acting in good faith and in the exercise of reasonable judgment.
(c) The Stockholders' Representative shall have reasonable access to information about the Company and Parent and the reasonable assistance of the Company's and Parent's officers and employees for purposes of performing his duties and exercising his rights hereunder, PROVIDED, that (i) the Stockholders' Representative shall treat confidentially and not disclose any nonpublic information from or remedies about the Company or Parent to anyone (except on a need to know basis to individuals who agree in writing to treat such information confidentially) and (ii) such information shall not be provided by Parent or the Company to the extent that (A) such information is subject to a confidentiality or nondisclosure agreement to which Parent or the Company is a party, (B) disclosure of such information would jeopardize the attorney/client or work product privileges attaching to such information or (C) such information would not otherwise be required to be disclosed by Parent or the Company pursuant to applicable discovery rules.
(d) The Stockholders shall, severally and not jointly, on a pro rata basis based on their proportionate ownership interests in the Escrow Account immediately following the Closing, indemnify, defend and hold the Stockholders' Representative harmless from and against any Stockholder loss, damage, tax, liability and expense that may have be incurred by the Stockholders' Representative arising out of or in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach acceptance or administration of the provisions Stockholders' Representative's duties, except as caused by the Stockholders' Representative's gross negligence or willful misconduct, including the legal costs and expenses of this Section 3.7defending such Stockholders' Representative against any claim or liability in connection with the performance of the Stockholders' Representative's duties. are inadequate; thereforePrior to final distribution of Escrowed Shares in termination of the Escrow as provided in the Escrow Agreement, Parent, Merger Subsidiary and/or the Surviving Corporation Stockholders' Representative shall be entitled entitled, but not limited to, such indemnification from the Escrow Fund (with the Parent Shares included therein, if any, being valued at the Adjusted Stock Price for this purpose) prior to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors distribution thereof to the Stockholder's rights hereunderStockholders, whether pursuant but after any distributions therefrom to testamentary dispositionParent; PROVIDED, HOWEVER, that the laws Escrow Agent shall disburse such Escrowed Shares, if any, FIRST, from the Accounts (as defined in the Escrow Agreement) of descent all Stockholders other than the holder of Preferred Shares on a PRO RATA basis and distribution or otherwiseSECOND, to the extent additional Escrowed Shares are necessary to satisfy such claims, from the Account of the holder of Preferred Shares.
Appears in 1 contract
Sources: Merger Agreement (Ticketmaster Online Citysearch Inc)
Stockholders’ Representative. (a) In order By the execution and delivery of this Agreement and by their act of surrendering certificates representing their Shares pursuant to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution each of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate irrevocably constitutes and appoints, for the period beginning on the date hereof and ending on the later of the third anniversary of this Agreement or date on which all indemnity claims under Article V hereof are finally settled, ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, MDhis or her true and lawful agent and attorney-in-fact (the "Representative"), with full power of substitution, subject to the terms of the Representative Agreement dated of even date herewith among the Stockholders and the Representative and attached hereto as EXHIBIT 1.06(A), to act in 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, litigation or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power:
(i) to waive any condition to the obligations of the Stockholders to consummate the transactions contemplated by this Agreement, PROVIDED, HOWEVER, that if the waiver of any condition could have a Material Adverse Effect (as defined in Section 3.01) on the Stockholders, such waiver must be approved by a majority in interest of the Stockholders;
(ii) to act for the Stockholders with regard to matters pertaining to indemnification referred to in this Agreement and adjustments pursuant to Section 1.03, including the power to compromise any claim on behalf of the Stockholders;
(iii) to do or refrain from doing any further act or deed on behalf of the Stockholders which the Representative deems necessary or appropriate in his sole discretion relating to the subject matter of this Agreement, as their representative fully and completely as each Stockholder could do if personally present; and
(iv) to deliver all ancillary agreements, certificates and documents and to receive all notices and service of process on behalf of the Stockholders in connection with any claims or matters under this Agreement (and the Representative agrees to deliver copies of all such capacity, notices and service of process to the "Stockholders' Representative").
(b) In the event that If ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, MDdies or otherwise becomes incapacitated and unable to serve as Representative, or his substitute is unwilling to serve as Representative, then a new Representative shall be selected by the affirmative vote of a majority in interest of the Stockholders to serve as the Stockholders' new Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority . The appointment of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative Representative shall be deemed coupled with an interest and shall be irrevocable, and Natrol and Prolab and any other person may conclusively and absolutely rely, without inquiry, upon any action of the Representative on behalf of the Stockholders in all matters referred to a herein. All notices delivered by Natrol or Prolab to the Representative (whether pursuant hereto or otherwise) for the benefit of the Stockholders shall constitute notice by Natrol or Prolab to the Stockholders' . The Representative shall act for the Stockholders on all purposes of the matters set forth in this Agreement in the manner the Representative believes to be in the best interest of the Stockholders and consistent with his obligations under this Agreement, but the documents delivered pursuant heretoRepresentative shall not be responsible to the Stockholders for any loss or damages the Stockholders may suffer by reason of the performance by the Representative of his duties under this Agreement, other than loss or damage arising from willful violation of the law or gross negligence in the performance of his duties under this Agreement. The Stockholders agree to indemnify and hold harmless the Representative from and against any and all expenses (including attorneys' fees), judgments fines or other damages incurred by him in connection with, arising from or relating to the performance of his duties as Representative hereunder, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Stockholders and, with respect to any criminal action or proceeding, had no reasonable belief his conduct was unlawful. Natrol and Prolab agree that the Stockholders may so indemnify the Representative.
(c) By virtue All actions, decisions and instructions of the adoption of this Agreement and Representative taken, made or given pursuant to the approval of authority granted to the Merger by the Stockholders at a meeting of Stockholders Representative pursuant to paragraph (or by written consent in lieu of a meetinga) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative above shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed conclusive and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on . Natrol and Prolab hereby acknowledge that the instructions and decisions of the Stockholders' Representative as may with respect to any other actions required particular action, decision or permitted to be taken by instruction solicit the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all consent of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;before acting.
(vid) the The provisions of this Section 3.7. 1.06 are independent and severable, are shall constitute an irrevocable and power of attorney, coupled with an interest and shall be enforceable notwithstanding any rights surviving death or remedies that any Stockholder may have in connection with dissolutions, granted by the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of Stockholders to the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary Representative and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trusteessuccessors and assigns of each such Stockholder.
(e) Natrol and Prolab shall be entitled to rely conclusively on the instructions and decisions of the Representative as to any actions required or permitted to be taken by the Stockholders or the Representative hereunder, and successors no party hereunder shall have any cause of each Stockholder, action against Natrol and Prolab for any references action taken by Natrol or Prolab in this Agreement to a Stockholder reliance upon the instructions or decisions of the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseRepresentative.
Appears in 1 contract
Stockholders’ Representative. (a) In order By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders, each of the Company Equityholders shall be deemed to efficiently administer have agreed to appoint Fortis Advisors LLC as its exclusive agent and attorney-in-fact (the transactions contemplated hereby“Stockholders’ Representative”) for and on behalf of the Company Equityholders to give and receive notices and communications, including to authorize payment to any Indemnified Party from the Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Equityholder or by any such Company Equityholder any Indemnified Party or any dispute between any Indemnified Party and any such Company Equityholder, in each case relating to this Agreement or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the ability judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to take all action necessary against Parent act on behalf of the Company Equityholder, except as expressly provided herein and in connection with breaches of obligations by Parent under this the Escrow Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Such agency may be changed by the Company Equityholders with the right to a majority in interest of the Escrow Fund from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Equityholders, which resignation shall be effective upon the earlier of (iiA) thirty (30) calendar days following delivery of such written notice or (B) the orderly distribution appointment of Merger Consideration from Parent a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders, ’ Representative or any member of the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, Advisory Group and the "Closing and/or any termination of this Agreement and the Escrow Agreement. No bond shall be required of the Stockholders' ’ Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as Certain Company Stockholders have entered into an engagement agreement with the Stockholders' Representative, dies, becomes unable ’ Representative to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior provide direction to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' ’ Representative for all purposes of in connection with its services under this Agreement and the documents delivered Escrow Agreement (such Company Stockholders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”). Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees nor any member of the Advisory Group (collectively, the “Stockholders’ Representative Group”), shall be liable to any Company Equityholder for any act done or omitted hereunder, under the Escrow Agreement or under any Stockholders’ Representative engagement agreement as Stockholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the part of such Stockholders’ Representative. The Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts. The Stockholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Stockholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Equityholder shall indemnify and defend the Stockholders’ Representative Group and hold the Stockholders’ Representative Group harmless against any loss, liability, claims, damages, fees, costs or expense (including expenses in connection with seeking recovery from insurers), judgments, fines or amounts paid in settlement incurred on the part of the Stockholders’ Representative (so long as the Stockholders’ Representative were acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel or other skilled professionals retained by the Stockholders’ Representative (“Stockholders’ Representative Expenses”). The Stockholders’ Representative shall have the right to retain Stockholders’ Representative Expenses first, from the Representative Reimbursement Amount prior to any distribution to the Company Equityholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholders’ Representative Expenses actually incurred, second, from any distribution of the Escrow Fund otherwise distributable to the Company Equityholders at the time of distribution, and third, directly from the Company Equityholders. The Company Equityholders acknowledge that the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant heretoto this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the Stockholders’ Representative in performing such actions.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant The Stockholders’ Representative shall be entitled to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as rely upon the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' RightsClosing Date Allocation Schedule, (ii) rely upon any signature reasonably believed by it to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreementbe genuine, and (iii) reasonably assume that a signatory has proper authorization to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or sign on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to objectapplicable Company Equityholder or other party. A decision, dissentact, protest consent or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions instruction of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' ’ Representative under this Agreement or the Escrow Agreement, except for fraud including an amendment, extension or willful breach waiver of this Agreement pursuant to Sections 9.4 or 9.5 hereof, shall constitute a decision of the Company Equityholders and shall be final, binding and conclusive upon the Company Equityholders and such Company Equityholder’s successors as if expressly confirmed and ratified in writing by such Company Equityholder. The powers, immunities and rights to indemnification granted to the Stockholders' Representative;
’ Representative Group hereunder: (vii) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetence, bankruptcy or liquidation of any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary Company Equityholder and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, on any successor trusteesthereto, and successors (ii) shall survive the delivery of each Stockholderan assignment by any Company Equityholder of the whole or any fraction of his, and any references her or its interest in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseEscrow Fund.
Appears in 1 contract
Stockholders’ Representative. (a) In order By virtue of the approval and adoption of this Agreement by the requisite consent of the Company Stockholders, each of the Company Equityholders shall be deemed to efficiently administer have agreed to appoint Shareholder Representative Services LLC as its exclusive agent and attorney-in-fact (the transactions contemplated hereby“Stockholders’ Representative”) for and on behalf of the Company Equityholders to give and receive notices and communications, to authorize payment to any Indemnified Party from the Escrow Fund or WC Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Equityholder or by any such Company Equityholder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Equityholder, in each case relating to this Agreement or the Merger, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Notwithstanding the foregoing, the Stockholders’ Representative shall have no obligation to act on behalf of the Company Equityholder, except as expressly provided herein and in the Escrow Agreement, and for purposes of clarity, there are no obligations of the Stockholders’ Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. Such agency may be changed by the Company Equityholders with the right to a majority in interest of the Escrow Fund from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Equityholders, which resignation shall be effective upon the earlier of (A) twenty (20) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. The immunities and rights to indemnification shall survive the resignation or removal of the Stockholders’ Representative. No bond shall be required of the Stockholders’ Representative.
(b) Neither the Stockholders’ Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Stockholders’ Representative Group”), shall be liable to any Company Equityholder for any act done or omitted hereunder, under the Escrow Agreement, under any Stockholders’ Representative engagement agreement , or any agreement ancillary to this Agreement which while acting in good faith, even if such act or omission constitutes negligence on the part of such Stockholders’ Representative. The Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts. The Stockholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Stockholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Equityholders will indemnify, defend and hold harmless the Stockholders’ Representative Group from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative Group’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative Group, the Stockholders’ Representative will reimburse the Company Equityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative Group by the Company Equityholders Group, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this AgreementRepresentative Reimbursement Amount, and (ii) the orderly distribution amounts in the Escrow Funds at such time as remaining amounts would otherwise be distributable to the Company Equityholders; provided, that while this section allows the Stockholders’ Representative Group to be paid from the aforementioned sources of Merger Consideration funds, this does not relieve the Company Equityholders from Parent their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative Group be required to advance its own funds on behalf of the Company Equityholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Company Equityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to ’ Representative Group under this Section. The foregoing indemnities will survive the Closing, a majority the resignation or removal of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' ’ Representative for all purposes or the termination of this Agreement. The Company Equityholders acknowledge that the Stockholders’ Representative shall not be required to expend or risk its own funds or otherwise incur any financial liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby. Furthermore, the Stockholders’ Representative shall not be required to take any action unless the Stockholders’ Representative has been provided with funds, security or indemnities which, in its determination, are sufficient to protect the Stockholders’ Representative against the costs, expenses and liabilities which may be incurred by the documents delivered pursuant heretoStockholders’ Representative in performing such actions.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant The Stockholders’ Representative shall be entitled to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as rely upon the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' RightsClosing Date Allocation Schedule, (ii) rely upon any signature reasonably believed by it to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreementbe genuine, and (iii) reasonably assume that a signatory has proper authorization to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or sign on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to objectapplicable Company Equityholder or other party. A decision, dissentact, protest consent or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions instruction of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' ’ Representative under this AgreementAgreement or the Escrow Agreement shall constitute a decision of the Company Equityholders and shall be final, except for fraud or willful breach of this Agreement binding and conclusive upon the Company Equityholders and such Company Equityholder’s successors as if expressly confirmed and ratified in writing by such Company Equityholder. The powers, immunities and rights to indemnification granted to the Stockholders' Representative;
’ Representative Group hereunder: (vii) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding irrevocable and survive the death, incompetence, bankruptcy or liquidation of any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary Company Equityholder and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, on any successor trusteesthereto, and successors (ii) shall survive the delivery of each Stockholderan assignment by any Company Equityholder of the whole or any fraction of his, and any references her or its interest in the Escrow Fund. Notwithstanding anything in this Agreement to a Stockholder the contrary, following Closing, the Stockholders’ Representative shall be permitted to disclose information as required by law or to employees, advisors, agents or consultants of the Stockholders shall mean Stockholders’ Representative and include the successors to the Stockholder's rights hereunderCompany Equityholders, whether pursuant in each case who have a need to testamentary dispositionknow such information, the laws of descent and distribution or otherwiseprovided that such persons are subject to confidentiality obligations with respect thereto.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant totransactions contemplated hereby, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the principal terms of the Merger at such meeting and the consummation of the Merger or by written consent) that is not a holder of Dissenting Shares participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated designates, Shareholder Representative Services LLC as the Stockholders' Representative, and any substitute Stockholders' ’ Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take for all action necessary against Parent purposes in connection with breaches of obligations by Parent under this AgreementAgreement and any agreement ancillary hereto, including (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iva) to give and receive all notices required and communications to be given Parent for any purpose under this Agreement after and the Additional Agreements; (b) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the Closing, other disputes arising under or related to this Agreement; (c) to enter into and deliver the Escrow Agreement on behalf of each of the Company Securityholders; (d) to authorize or object to delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent in accordance with the provisions of the Escrow Agreement; (e) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger; and (f) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Stockholders’ Representative may resign at any time. Such agency may be changed by the Company Securityholders from time to time upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may not be removed unless holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Securityholders will indemnify, defend and hold harmless the Stockholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund, and (vii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to take any and all additional action as is contemplated the Company Securityholders; provided that, while this provision allows the Stockholders’ Representative to be taken by paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest Company Securityholders or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7otherwise. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references Notwithstanding anything in this Agreement to a Stockholder the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 14.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the Stockholders shall mean and include termination of this Agreement. Upon the successors Closing, the Company will wire $150,000 (the “Expense Fund”) to the Stockholder's rights hereunderStockholders’ Representative, whether which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to testamentary dispositionthis Agreement and the agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the laws Stockholders’ Representative will deliver any remaining balance of descent the Expense Fund to the Company. For Tax purposes, the Expense Fund will be treated as having been received and distribution or otherwisevoluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that . ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, ---------------------------- (such person and any successor or his substitute successors being the "Stockholders' ------------ Representative") shall act as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority representative of the outstanding Shares shall select another representative Company Stockholders, -------------- and hereby is authorized to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue act on behalf of the adoption of this Agreement Company Stockholders and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunderunder this Agreement or the Escrow Agreement, with respect to any claims (including the settlement thereof) made by a Parent Indemnified Party for indemnification pursuant to this Article IX and no party shall have with respect to any cause of action against Parent actions to the extent Parent has relied upon the instructions or decisions of be taken by the Stockholders' Representative;
Representative pursuant to the terms of the Escrow Agreement (vincluding, without limitation, the exercise of the power to (i) authorize the delivery of Escrow Shares to a Parent Indemnified Party in satisfaction of claims by a Parent Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims and (iii) take all actions, decisions and instructions actions necessary in the judgment of the Stockholders' Representative for the accomplishment of the foregoing). The Company Stockholders shall be conclusive and binding upon bound by all of the Stockholders and no Stockholder shall have any cause of action against actions taken by the Stockholders' Representative in its capacity thereof, except for any action that conflicts with the limitation set forth in the final sentence of this Section 9.04. The Stockholders' Representative shall promptly, and in any event within 5 business days, provide written notice to the Company Stockholders of any action taken on behalf of them by the Stockholders' Representative pursuant to the authority delegated to the Stockholders' Representative under this Section 9.04. The Stockholders' Representative shall at all times act in his or her capacity as Stockholders' Representative in a manner that the Stockholders' Representative believes to be in the best interest of the Company Stockholders. The Stockholders' Representative shall not be liable to any person for any error of judgment, or any action taken, decision made suffered or instruction given omitted to be taken, under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Stockholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Stockholders' Representative shall not exercise any discretion or take any action. Each Company Stockholder severally shall indemnify and hold harmless and reimburse the Stockholders' Representative from and against such Company Stockholder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders' Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders' Representative under this Agreement or the Escrow Agreement, except for fraud other than such liabilities, losses, damages, claims, costs or willful breach expenses arising out of this Agreement by or resulting from the Stockholders' Representative;
(vi) 's gross negligence, bad faith or willful misconduct. In all matters relating to this Article IX, the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and Stockholders' Representative shall be enforceable notwithstanding any the only party entitled to assert the rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions Company Stockholders, and the Stockholders' Representative shall perform all of this Section 3.7the obligations of the Company Stockholders hereunder. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation The Parent Indemnified Parties shall be entitled to temporary rely on all statements, representations and permanent injunctive relief without decisions of the necessity of proving damages if either ParentStockholders' Representative. Notwithstanding anything to the contrary herein or in the Escrow Agreement, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viiii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trusteesStockholders' Representative is not authorized to, and successors shall not, accept on behalf of each Stockholder, and any references in Company Stockholder any merger consideration to which such Company Stockholder is entitled under this Agreement and (ii) the Stockholders' Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Parent now or hereafter owned of record or beneficially by any Company Stockholder unless the Stockholders' Representative is expressly authorized to do so in a Stockholder or the Stockholders shall mean and include the successors to the writing signed by such Company Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Actuate Corp)
Stockholders’ Representative. (a) In order By approving this Agreement, the stockholders and Optionholders of Holdings hereby appoint H.I.G. Call Center II, Inc., a Cayman Island company, and its permitted successors, as the agent for and on behalf of the stockholders of Holdings (the “Stockholders’ Representative”) to efficiently administer give and receive notices and communications, to authorize delivery to the transactions contemplated herebyParent of Escrow Cash from the Escrow Fund in satisfaction of indemnification claims by the Parent, to withhold the Working Capital Holdback and settle and pay the Purchase Price adjustments in Section 2.10, to object to such deliveries, negotiate, enter into settlements and compromises of, and comply with Orders of courts with respect to such claims (including (i) the ability third party claims), and to take all action actions necessary against Parent or appropriate in connection with breaches the judgment of obligations the Stockholders’ Representative for the accomplishment of the foregoing. Such agency may be changed from time to time upon not less than ten (10) days’ prior written notice, executed by Parent under this Agreementthe Stockholders’ Representative to the Parent. No bond shall be required of the Stockholders’ Representative, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, ’ Representative shall receive no compensation for its services. Notices or communications to or from the Stockholders hereby desire Stockholders’ Representative shall constitute notice to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, or from the "Stockholders' Representative")Company and each of the stockholders and Optionholders of Holdings.
(b) In The Stockholders’ Representative shall not be liable for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and any act done or omitted pursuant to the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇advice of counsel shall be conclusive evidence of such good faith. The stockholders and Optionholders of Holdings shall severally indemnify the Stockholders’ Representative and hold it, MDits officers, directors, employees and agents harmless against any Losses, Liability, or his substitute as expense incurred without gross negligence or bad faith on the part of the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder ’ Representative and arising out of or resigns from such position, in connection with the Stockholders holding, immediately prior to the Closing, a majority acceptance or administration of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant heretoits duties hereunder.
(c) By virtue A decision, act, consent or instruction of the adoption Stockholders’ Representative shall constitute a decision of this Agreement all the stockholders and Optionholders of Holdings for whom Escrow Cash is otherwise payable to them is deposited in escrow and shall be final, binding, and conclusive upon each such stockholder and Optionholder, and the approval Parent may rely upon any decision, act, consent, or instruction of the Merger by Stockholders’ Representative as being the Stockholders at a meeting decision, act, consent or instruction of Stockholders (or by written consent in lieu of a meeting) pursuant to, each and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not every such Stockholder votes in favor of the adoption of this Agreement stockholder and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Optionholder. The Stockholders' Representative, and any substitute Stockholders' ’ Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest consent to the same;use of the Escrow Fund to settle any claims made hereunder.
(ivd) Parent H.I.G. Call Center II, Inc. may resign as the Stockholders’ Representative and appoint a successor Stockholders’ Representative in its sole discretion at any time by giving five days’ prior written notice of such resignation to the Parent, which notice shall include the name of the successor Stockholders’ Representative. Such successor Stockholders’ Representative shall become the Stockholders’ Representative and H.I.G. Call Center II, Inc. shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied discharged from its duties hereunder upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have resignation date specified in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7such notice.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Global BPO Services Corp)
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant totransactions contemplated hereby, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the principal terms of the Merger at such meeting and the consummation of the Merger or by written consent) that is not a holder of Dissenting Shares participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Merger, each Company Securityholder shall be deemed to have appointed the designation of, and hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated designates, Shareholder Representative Services LLC as the Stockholders' Representative, and any substitute Stockholders' ’ Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take for all action necessary against Parent purposes in connection with breaches of obligations by Parent under this AgreementAgreement and any agreement ancillary hereto, including (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iva) to give and receive all notices required and communications to be given Parent for any purpose under this Agreement after and the Additional Agreements; (b) to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Section 11.1 or, following the Closing, other disputes arising under or related to this Agreement; (c) to enter into and deliver the Escrow Agreement on behalf of each of the Company Securityholders; (d) to authorize or object to delivery to Parent of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent in accordance with the provisions of the Escrow Agreement; (e) to act on behalf of Company Securityholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger; and (f) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. The Stockholders’ Representative may resign at any time. Such agency may be changed by the Company Securityholders from time to time upon no less than twenty (20) days’ prior written notice to Parent; provided, however, that the Stockholders’ Representative may not be removed unless holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of a majority of the Company Securities (on an as converted or exercised basis) outstanding immediately prior to the Effective Time. No bond shall be required of the Stockholders’ Representative. The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders’ Representative in connection with the Stockholders’ Representative’s services pursuant to this Agreement and any agreement ancillary hereto, except in the event of liability directly resulting from the Stockholders’ Representative’s gross negligence or willful misconduct. The Stockholders’ Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Company Securityholders will indemnify, defend and hold harmless the Stockholders’ Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholders’ Representative’s execution and performance of this Agreement and any agreement ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Securityholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Securityholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the funds in the Expense Fund, and (vii) the amounts in the Escrow Fund at such time as remaining amounts would otherwise be distributable to take any and all additional action as is contemplated the Company Securityholders; provided that, while this provision allows the Stockholders’ Representative to be taken by paid from the aforementioned sources of funds, this does not relieve the Company Securityholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest Company Securityholders or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7otherwise. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references Notwithstanding anything in this Agreement to a Stockholder the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Securityholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Representative under this Section 14.14. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the Stockholders shall mean and include termination of this Agreement. Upon the successors Closing, the Company will wire $150,000 (the “Expense Fund”) to the Stockholder's rights hereunderStockholders’ Representative, whether which will be used for the purposes of paying directly, or reimbursing the Stockholders’ Representative for, any third party expenses pursuant to testamentary dispositionthis Agreement and the agreements ancillary hereto. The Company Securityholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Representative will not be liable for any loss of principal of the Expense Fund other than as a result of its gross negligence or willful misconduct. The Stockholders’ Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Representative’s responsibilities, the laws Stockholders’ Representative will deliver any remaining balance of descent the Expense Fund to the Company. For Tax purposes, the Expense Fund will be treated as having been received and distribution or otherwisevoluntarily set aside by the Company at the time of Closing.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer By virtue of the transactions contemplated hereby, including (i) approval of the ability to take all action necessary against Parent in connection with breaches of obligations Merger and execution and deliver this Agreement by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, each of the Stockholders hereby desire to designate ▇▇collectively and irrevocably constitute and appoint D▇▇▇▇▇ ▇▇▇▇▇▇▇, MD▇ as his agent and attorney-in-fact, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after to give and receive notices and communications, to authorize payment to any Indemnified Party from the Effective Time Escrow Fund in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Stockholder or by any such Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, to execute and deliver documents and certificates pursuant to this Agreement (including on behalf of a Stockholder), to receive and disburse amounts to the Stockholders, to make all determinations with respect to the Minimum Cash and Merger Consideration, to agree to all amendments or modifications hereof and of any Related Agreements, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement;. Stockholders Representative may resign from its position as Stockholder Representative at any time by written notice to Parent and the Stockholders. A vacancy in the position of Stockholders Representative may be filled by the holders of two-thirds in interest of the Escrow Fund. No bond shall be required of the Stockholders Representative, and the Stockholders Representative shall not receive any compensation for its services. Notices or communications to or from the Stockholders Representative shall constitute notice to or from the Stockholders.
(iiib) All decisions The Stockholders Representative shall not be liable to the Stockholders for any act done or omitted hereunder as Stockholders Representative while acting in good faith and actions in the exercise of reasonable judgment. The Stockholders on whose behalf the Escrow Shares were contributed to the Escrow Fund shall indemnify the Stockholders Representative and hold the Stockholders Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders Representative and arising out of or in connection with the acceptance or administration of the Stockholders Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders' Representative Stockholders Representative. A decision, act, consent or instruction of the Stockholders Representative, including an amendment, extension or waiver of this Agreement pursuant to Section 6.5 hereof, shall be binding upon all constitute a decision of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to final, binding and conclusive upon the Stockholders; and the Escrow Agent and Parent may rely conclusively on upon any such decision, act, consent or instruction of the instructions and decisions Stockholders Representative as being the decision, act, consent or instruction of the Stockholders' Representative as . The Escrow Agent and Parent are hereby relieved from any liability to any other actions required person for any acts done by them in accordance with such decision, act, consent or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all instruction of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, ▇ is hereby appointed as their representative (agent and attorney-in-fact for each of the Stockholders to represent the interests of the Stockholders and to take all actions and make all decisions necessary or appropriate in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as judgment of the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' ’ Representative for all purposes of in connection with this Agreement and the documents delivered pursuant hereto.
Additional Agreements, including the power (ci) By virtue of to enter into and deliver the adoption of this Escrow Agreement and the approval Earn-out Escrow Agreement on behalf of each of the Merger by the Stockholders at a meeting of Stockholders (or by written consent other than the Bridge Lender in lieu of a meeting) pursuant to, and in accordance with, its capacity as the applicable provisions holder of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(bBridge Loan Shares);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take make all action necessary against Parent determinations and issue all notices pursuant to Section 4.4 above and the Earn-out Escrow Agreement on behalf of each of the Stockholders (other than the Bridge Lender in connection its capacity as the holder of the Bridge Loan Shares), (ii) to defend, negotiate, settle or otherwise deal with breaches claims under Article X hereof and under the Escrow Agreement on behalf of obligations by Parent under this Agreementeach of the Stockholders (other than the Bridge Lender in its capacity as the holder of the Bridge Loan Shares), (iii) to determine the Stockholders to whom consideration from Parent shall be distributed defend, negotiate, settle or otherwise deal with any other litigation or dispute involving this Agreement, and the amount of consideration to be so distributed, (iv) after the Closing, to give and receive amend this Agreement; provided, that, unless the Stockholder Representative receives the written consent of 51% of all notices required of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to be given under the transaction contemplated by this Agreement, the Stockholders’ Representative shall not enter into an amendment to this Agreement after that would have required the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf approval of the Stockholders under applicable Law if it had been adopted prior to the Closing; provided, further, that if any amendment disproportionately and adversely impacts a Stockholder (or group of Stockholders), the written consent of such disproportionately impacted Stockholder (or group of Stockholders) shall also be required. The Stockholders’ Representative may be removed by the Stockholders from time to time upon no less than twenty (20) days’ prior written notice to the Purchaser Parties and, if after the Effective Time Closing, the Purchaser, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the terms position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the shares of Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement;
(iii) All decisions . Any removal or change of the Stockholders’ Representative shall not be effective until written notice is delivered to the Parent or Purchaser, as applicable. No bond shall be required of the Stockholders’ Representative, and actions the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. In connection with the performance of his rights and obligations hereunder, the Stockholders’ Representative shall have the right at any time and from time to time to select and engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such other professional and expert assistance, maintain such records and incur other out-of-pocket expenses, as the Stockholders’ Representative may deem necessary or desirable from time to time, at the cost and expense of the Company, but subject to the indemnification obligations of Article X. The Company shall indemnify the Stockholders’ Representative and hold it harmless 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 its duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs incurred by the Stockholders' ’ Representative. A decision, act, consent or instruction of the Stockholders’ Representative shall be binding upon shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions final, binding and decisions conclusive upon each of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions . The appointment of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' ’ Representative shall will be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and deemed coupled with an interest and shall will be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with irrevocable without the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach consent of the Stockholders’ Representative, and shall survive the death, incapacity, or bankruptcy of any Stockholder. The provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. 13.15 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, trustees and successors of each Stockholder. All of the indemnities, immunities, rights, releases and any references in powers granted to the Stockholders’ Representative under this Agreement to a Stockholder or shall survive the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseClosing.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes voting in favor of the adoption of this Agreement and Agreement, the approval of the Merger at such meeting or by written consent) that is not a holder principal terms of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' RepresentativeMerger, and any substitute Stockholders' Representative shall be elected as set forth the consummation of the Merger or participating in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' RepresentativeMerger and receiving the benefits thereof, (i) after including the Effective Time right to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent receive the consideration payable in connection with breaches of obligations by Parent under this Agreementthe Merger, (iii) to determine the Stockholders to whom consideration from Parent each Company Stockholder shall be distributed deemed to have approved the designation of, and hereby designates, Shareholder Representative Services LLC as the representative, agent and attorney-in-fact of each Company Stockholder for all purposes in connection with this Agreement and the amount of consideration to be so distributedagreements ancillary hereto, (iv) in each case following the Closing, including to give and receive all notices required and communications, to be given under authorize payment to any Parent Indemnitee from the Escrow Fund in satisfaction of claims by any Parent Indemnitee, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrations with respect to, any other claim by any Parent Indemnitee against any Company Stockholder or by any such Company Stockholder against any Parent Indemnitee or any dispute between any Parent Indemnitee and any such Company Stockholder, in each case relating to this Agreement after or the Effective Timetransactions contemplated hereby, and (v) to take any and all additional action as is contemplated to be taken by other actions that are either (i) necessary or on behalf appropriate in the judgment of the Stockholders after Stockholders’ Representative for the Effective Time accomplishment of the foregoing or (ii) permitted by the terms of this Agreement;Agreement or the agreements ancillary hereto. If the Stockholders’ Representative shall resign or be removed by the Company Stockholders, the Company Stockholders shall (by consent of those Persons holding at least a majority of the outstanding shares of Company Common Stock immediately prior to the Effective Time), within ten (10) days after such resignation or removal, appoint a successor to the Stockholders’ Representative. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder.
(iiib) All decisions and actions The Stockholders’ Representative will incur no liability of any kind with respect to any action or omission by the Stockholders' ’ Representative shall be binding upon all in connection with its services pursuant to this Agreement and the agreements ancillary hereto, except in the event of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of liability directly resulting from the Stockholders' Representative as to any other actions required ’ Representative’s gross negligence or permitted to be taken by willful misconduct. The Company Stockholders will indemnify, defend and hold harmless the Stockholders' ’ Representative hereunderfrom and against any and all losses, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all liabilities, damages, claims, penalties, fines, forfeitures, actions, decisions fees, costs and instructions expenses (including the fees and expenses of the Stockholders' counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative shall be conclusive and binding upon all Losses”) arising out of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated Stockholders’ Representative’s execution and performance of this Agreement and the agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholders’ Representative, the Stockholders’ Representative will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholders’ Representative by the Company Stockholders, any such Representative Losses may be recovered by the Stockholders’ Representative from (i) the Aggregate Stockholders’ Representative Expense Amount and (ii) the amount of cash in the Escrow Fund at such time as remaining amounts would otherwise be distributable to the Company Stockholders; provided, that while this Agreement;
(vii) section allows the Stockholders’ Representative to be paid from the Aggregate Stockholders’ Representative Expense Amount and the cash portion of the Escrow Fund, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholders’ Representative from seeking any remedies available to it at law for any breach or otherwise. In no event will the Stockholders’ Representative be required to advance its own funds on behalf of the provisions Company Stockholders or otherwise. Any restrictions or limitations on liability or indemnity of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references Company Stockholders set forth elsewhere in this Agreement are not intended to a Stockholder be applicable to the indemnities provided to the Stockholders’ Representative in this paragraph. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Representative or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws termination of descent and distribution or otherwisethis Agreement.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as (such person and any successor or successors being the "Stockholders' Representative") shall act as the representative of the Tendering Stockholders, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The authorized to act on behalf of the Tendering Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' Representative hereunderunder this Agreement with respect to any claims (including the settlement thereof) made by an Indemnified Party for indemnification pursuant to this Section 7 and with respect to any actions to be taken by the Stockholders' Representative pursuant to the terms of the Escrow Agreement. The Stockholder Representative shall be entitled to exercise power with respect to the foregoing, including, without limitation, to (i) authorize the delivery of amounts from the Escrow to an Indemnified Party in satisfaction of claims by an Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and no party shall have comply with orders of courts with respect to any cause claims for indemnification, and (iii) take all actions necessary in the judgment of action against Parent the Stockholders' Representative for the accomplishment of the foregoing. In all matters relating to the extent Parent has relied upon foregoing, the instructions or Stockholders' Representative shall be the only party entitled to assert the rights of the Tendering Stockholders. The Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Stockholders' Representative;. The Stockholders' Representative is not entitled to amend this Agreement or take any actions relating to this Agreement prior to the Closing.
(vb) The Tendering Stockholders shall be bound by all actionsactions taken by the Stockholders' Representative in his capacity thereof, decisions except for any action that conflicts with the limitations set forth in subsection (d) below. The Stockholders' Representative shall promptly, and instructions in any event within ten business days, provide written notice to the Tendering Stockholders of any action taken on behalf of them by the Stockholders' Representative pursuant to the authority delegated to the Stockholders' Representative under this Section 7. The Stockholders' Representative shall at all times act in his or her capacity as Stockholders' Representative in a manner that the Stockholders' Representative believes to be in the best interest of the Tendering Stockholders. Neither the Stockholders' Representative nor any of its directors, officers, agents or employees, if any, shall be liable to any person for any error of judgment, or any action taken, suffered or omitted to be taken under this Agreement or the Escrow Agreement, except in the case of its gross negligence, bad faith or willful misconduct. The Stockholders' Representative may consult with legal counsel, independent public accountants and other experts selected by it. The Stockholders' Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Escrow Agreement. As to any matters not expressly provided for in this Agreement or the Escrow Agreement, the Stockholders' Representative shall not exercise any discretion or take any action.
(c) Each Tendering Stockholder on whose behalf a portion of its consideration was contributed to the Escrow shall, severally and not jointly, hold harmless and reimburse the Stockholders' Representative from and against such Tendering Stockholder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders' Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders' Representative as Stockholder Representative under this Agreement or the Escrow Agreement ("STOCKHOLDER REPRESENTATIVE EXPENSES"), other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Stockholders' Representative) arising out of or resulting from the Stockholders' Representative's gross negligence, bad faith or willful misconduct; provided, however, that no such Tendering Stockholder shall be liable in excess of such Tendering Stockholder's pro rata portion of the Escrow. The Stockholders' Representative shall be entitled to recover up to $500,000 of any Stockholder Representative Expenses paid to third parties from the Escrow at any time prior to the distribution of funds to the Tendering Stockholders. In the event there are any remaining funds in the Escrow to be distributed to stockholders of the Company immediately prior to the final distribution from the Escrow pursuant to the Escrow Agreement, the Stockholders' Representative shall be conclusive and binding upon all entitled to recover any such expenses in excess of $500,000 from the Stockholders and no Stockholder shall have any cause Escrow prior to the distribution of action against funds to the Tendering Stockholders.
(d) Notwithstanding anything to the contrary herein or in the Escrow Agreement, the Stockholders' Representative for is not authorized to, and shall not, accept on behalf of any action taken, decision made or instruction given by Tendering Stockholder any consideration to which such Tendering Stockholder is entitled under this Agreement and the Stockholders' Representative under this Agreementshall not in any manner exercise, except for fraud or willful breach seek to exercise, any voting power whatsoever with respect to shares of this Agreement capital stock of the Company or Purchasers now or hereafter owned of record or beneficially by any Tendering Stockholder unless the Stockholders' Representative is expressly authorized to do so in a writing signed by such Tendering Stockholder.
(e) In the event of the resignation, removal, death or incapacity of the Stockholders' Representative;
(vi) , a successor shall thereafter be appointed by an instrument in writing signed by such successor and by the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach Tendering Stockholders holding a majority of the provisions outstanding shares of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or Common Stock of the Surviving Corporation shall be entitled Company immediately prior to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trusteesClosing, and successors such appointment shall become effective as to any such successor when a copy of each Stockholder, and any references such instrument shall have been delivered to Purchasers in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseaccordance with Section 10.5.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock Purchase Agreement (Limelight Networks, Inc.)
Stockholders’ Representative. Section 8.6.1 Each Company Stockholder by virtue of the approval and adoption of this Agreement or other appointment authorization documentation (aother than such Company Stockholders, if any, who have perfected appraisal rights under Delaware Law or California Law) In order or by accepting any consideration payable hereunder shall be deemed to efficiently administer have agreed to appoint CommerceNet as its agent and attorney-in-fact (the “Stockholders’ Representative ”) for and on behalf of the Company Stockholders to act for the Company Stockholders with regard to matters pertaining to Article 8 and Article 9, give and receive notices and communications, authorize offset of the Holdback Shares in satisfaction of claims by any Indemnified Person, object to such payments, agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to such claims, assert, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any other claim by any Indemnified Person relating to this Agreement or the transactions contemplated hereby, including hereby and to take all other actions that are either (i) necessary or appropriate in the ability judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement. Each Company Stockholder agrees to take all action necessary against receive correspondence from the Stockholders’ Representative, including in electronic form. Such agency may be changed by the Company Stockholders with the right to receive a majority of the Holdback Shares from time to time. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Holdback Shares. If the Stockholders’ Representative shall be removed, resign or otherwise be unable to fulfill his responsibilities hereunder, the Company Stockholders shall appoint a successor to the Stockholders’ Representative, and shall immediately thereafter notify Parent the identity of such successor. Any such successor shall succeed the former Stockholders’ Representative as the Stockholders’ Representative hereunder. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. A decision, act, consent or instruction of the Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to its authority hereunder, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
Section 8.6.2 By executing this Agreement under the heading “Stockholders’ Representative,” CommerceNet hereby (i) accepts its appointment and authorization to act as Stockholders’ Representative as attorney-in-fact and agent on behalf of the Company Stockholders in connection accordance with breaches the terms of obligations by Parent under this Agreement, and (ii) agrees to perform his obligations under, and otherwise comply with, this Section 8.6.
Section 8.6.3 The Stockholders’ Representative shall not be liable to any Company Stockholder for any act done or omitted hereunder as the orderly distribution Stockholders’ Representative without gross negligence or willful misconduct or bad faith (and any act done or omitted pursuant to the bona fide good faith advice of Merger Consideration from Parent counsel, accountants and other professionals and experts retained by the Stockholders’ Representative shall be conclusive evidence of good faith). To the fullest extent permitted by applicable Law, the Company Stockholders shall severally indemnify the Stockholders’ Representative and hold him harmless against any loss, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of his duties hereunder, including any out-of-pocket costs and expenses and legal fees and other legal costs reasonably incurred by the Stockholders’ Representative. If not paid directly to the Stockholders’ Representative by the Company Stockholders, such losses, liabilities or expenses may be recovered by the Stockholders’ Representative from the Holdback Shares otherwise distributable to the Company Stockholders hereby desire (and not distributed or distributable to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇an Indemnified Person or subject to a pending indemnification claim of an Indemnified Person) after the Indemnity Termination Date, MDpursuant to the terms hereof at the time of distribution. The Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, as their representative (in express or implied. The Stockholders’ Representative may engage attorneys, accountants, investment bankers, advisors, consultants and clerical personnel and obtain such capacityother professional and expert assistance, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇and maintain such records, MD, or his substitute as the Stockholders' Representative’ Representative may deem necessary or desirable and incur other out-of-pocket expenses related to performing his services hereunder. The Stockholders’ Representative may in good faith rely conclusively upon information, diesreports, becomes unable to perform his responsibilities hereunder statements and opinions prepared or resigns from presented by such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representativeprofessionals, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted to be taken by the Stockholders' ’ Representative hereunder, based on such reliance shall be deemed conclusively to have been taken in good faith.
Section 8.6.4 All of the immunities and no party shall have any cause of action against Parent powers granted to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' ’ Representative under this Agreement, except for fraud or willful breach Agreement shall survive the Effective Time and/or any termination of this Agreement by the Stockholders' Representative;
(vi) the provisions Agreement. The grant of authority provided for in this Section 3.7. are independent and severable, are irrevocable and 8.6: (i) is coupled with an interest and shall be enforceable notwithstanding any rights irrevocable and survive the death, incompetence, bankruptcy or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach liquidation of the provisions respective Company Stockholder and shall be binding on any successor thereto; and (ii) shall survive the delivery of this an assignment by any Company Stockholder of the whole or any fraction of his, her or its interest in the Holdback Shares.
Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or 8.6.5 Parent and the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding rely upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors actions of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include Stockholders’ Representative as the successors to duly authorized actions of the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseCompany Stockholders.
Appears in 1 contract
Sources: Merger Agreement (Tegal Corp /De/)
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated hereby, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated appointed as the Stockholders' ’ true and lawful representative, proxy, agent and attorney-in-fact (the “Stockholders’ Representative, and any substitute Stockholders' Representative ”) for a term that shall be elected continuing and indefinite and without a termination date except as set forth in Section 3.7.(b);
(ii) The otherwise provided herein, to act for and on behalf of the Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) or relating to determine the Stockholders to whom consideration from Parent shall be distributed Transaction Documents and the amount of consideration to be so distributedContemplated Transactions, (iv) including, without limitation, to give and receive all notices required and communications, to be given receive and accept service of legal process in connection with any proceeding arising under this Agreement after the Effective TimeTransaction Documents or in connection with the Contemplated Transactions, to receive and (v) deliver the amount comprising the Final Closing Merger Consideration, to take authorize delivery of Promissory Note payments, to object to or accept any and all additional action as is contemplated to be taken by claims against or on behalf of the Stockholders after Principal Stockholders, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such amounts or claims, and to take all actions necessary or appropriate in the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions sole opinion of the Stockholders' ’ Representative as for the accomplishment of the foregoing. Such agency may be changed at any time and from time to any other actions required or permitted to be taken time by the Stockholders' Representative hereunderaction of Stockholders holding more than fifty percent (50%) of the issued and outstanding Shares that approved the Merger, and shall become effective upon not less than thirty (30) days prior written notice to ATS. Except as provided in the foregoing sentence, in the event that for any reason the most recent Stockholders’ Representative shall no party longer be serving in such capacity, including, without limitation, as a result of the death, resignation, or incapacity of the Stockholders’ Representative, either (i) the outgoing Stockholders’ Representative shall have any cause appoint a successor Stockholders’ Representative or (ii) if the outgoing Stockholders’ Representative is unable, unwilling or otherwise fails to appoint a successor Stockholder Representative, then Stockholders holding more than fifty percent (50%) of action against Parent the issued and outstanding Shares that approved the Merger shall designate another Person to act as Stockholders’ Representative, such that, at all times, to the extent Parent has relied practicable, there will be a Stockholders’ Representative with the authority provided hereunder. Any change in the Stockholders’ Representative pursuant to the foregoing sentence shall become effective upon delivery of written notice of such change to ATS. The Stockholders’ Representative shall not receive compensation for his or her services. Notices, deliveries or communications to or from the instructions Stockholders’ Representative by or decisions to any of the parties to the Transaction Documents shall constitute notices, deliveries or communications to or from each of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Ats Corp)
Stockholders’ Representative. By virtue of the authorization and consent of the Stockholders holding 75% or more of the total issued share capital of the Company (athe “Selling Stockholders”) In order and the drag along notices dated July 5, 2019, sent on behalf of the Selling Stockholders to efficiently administer the transactions contemplated herebyremaining stockholders of the Company, including the Stockholders have irrevocably nominated, constituted and appointed Pelham Limited, a Hong Kong company, as the agent and attorney-in-fact for each Stockholder, (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, give and (ii) the orderly distribution of Merger Consideration from Parent receive notices and communications to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative Purchaser for all purposes of any purpose under this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' RightsAdditional Agreements, (ii) to take all action necessary against Parent in connection agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with breaches orders of obligations by Parent courts and awards of arbitrators with respect to any indemnification claims under Section 10.1 or other disputes arising under or related to this Agreement, (iii) to determine enter into and deliver the Stockholders to whom consideration from Parent shall be distributed and Escrow Agreement on behalf of each of the amount of consideration to be so distributedStockholders, (iv) to give and receive all notices required authorize or object to be given under this Agreement after delivery to the Effective TimeStockholders of the Escrow Fund, and or any portion thereof, in satisfaction of indemnification claims by the Purchaser in accordance with the provisions of the Escrow Agreement, (v) to take any and all additional action as is contemplated to be taken by or act on behalf of the Stockholders after in accordance with the Effective Time provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Share Exchange and (vi) to take all actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. Such agency may be changed by the terms Stockholders from time to time upon no less than twenty (20) days’ prior written notice to the Purchaser, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement agree to such removal. Any vacancy in the position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement;
(iii) All decisions and actions by . Any removal or change of the Stockholders' ’ Representative shall not be binding upon effective until written notice is delivered to the Purchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions final, binding and decisions conclusive upon each of the Stockholders' Representative as to any other actions required or permitted to be taken by . The Stockholders shall severally indemnify the Stockholders' ’ Representative hereunderand hold him harmless against any loss, and no party shall have any cause of action against Parent to liability, or expense incurred without gross negligence or bad faith on the extent Parent has relied upon the instructions or decisions part of the Stockholders' Representative;
(v) all actions, decisions ’ Representative and instructions arising out of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach acceptance or administration of the provisions of this Section 3.7his duties hereunder. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references Notwithstanding anything in this Agreement to the contrary, the Stockholders’ Representative shall have no obligation or authority with respect to any indemnification claims against a Stockholder or made by the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisePurchaser under Section 10.2.
Appears in 1 contract
Sources: Share Exchange Agreement (8i Enterprises Acquisition Corp.)
Stockholders’ Representative. Long Deng is hereby appointed as agent and attorney-in-fact (athe “Stockholders’ Representative”) In order to efficiently administer the transactions contemplated herebyfor each Stockholder, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations give and receive notices and communications to or by Parent and Purchaser for any purpose under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' RightsAdditional Agreements, (ii) to take all action necessary against Parent in connection agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with breaches orders of obligations by Parent courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, (iii) to determine enter into and deliver the Stockholders to whom consideration from Parent shall be distributed and Escrow Agreement on behalf of each of the amount of consideration to be so distributedStockholders, (iv) to give authorize or object to delivery to Parent, Purchaser and receive the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent, Purchaser and the Surviving Corporation in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the Merger and (vi) to take all notices required actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to be given under this Agreement time upon no less than twenty (20) days prior written notice to the Purchaser and, if after the Effective Time, and (v) to take any and the Surviving Corporation, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all additional action as is contemplated to be taken by or on behalf of the Stockholders after Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time transaction contemplated by this Agreement agrees to such removal. Any vacancy in the terms position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement;
(iii) All decisions and actions by . Any removal or change of the Stockholders' ’ Representative shall not be binding upon effective until written notice is delivered to Purchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders of the Company and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions final, binding and decisions conclusive upon each of the Stockholders' Representative as to any other actions required or permitted to be taken by . The Stockholders shall severally indemnify the Stockholders' ’ Representative hereunderand hold him harmless against any loss, and no party shall have any cause of action against Parent to liability, or expense incurred without gross negligence or bad faith on the extent Parent has relied upon the instructions or decisions part of the Stockholders' Representative;
(v) all actions, decisions ’ Representative and instructions arising out of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach acceptance or administration of the provisions of his duties hereunder. Notwithstanding anything in this Section 3.7. are inadequate; therefore14.15 to the contrary, Parent, Merger Subsidiary and/or the Surviving Corporation Stockholders’ Representative (in his capacity as such) shall be entitled have no obligation or authority with respect to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to indemnification claims against a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisemade by a Purchaser Indemnitee under Section 11.1.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer Each of the transactions contemplated hereby, including Indemnifying Parties (i) the ability to take all action necessary against Parent in connection with breaches by execution of obligations by Parent under this Agreementa Letter of Transmittal, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By by virtue of the adoption of this Agreement and and/or the approval surrender of the vested Target Stock Options in exchange for Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) Consideration pursuant toto this Agreement, and in accordance withas applicable), the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as its agent and attorney-in-fact (the “Stockholders' ’ Representative, ”) for and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize on behalf of the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) Indemnifying Parties to give and receive all notices required and communications (including to be given under this Agreement after Parent), to authorize payment to Parent from the Effective TimeEscrow Fund in satisfaction of claims by Parent, to object to such payments, to consent to or object to calculations of the Contingent Consideration, to agree to, negotiate, enter into settlements and compromises of, and (v) comply with orders of courts with respect to such matters, and to take any and all additional action as is contemplated to be taken by other actions that are either (i) necessary or on behalf appropriate in the judgment of the Stockholders after Stockholders’ Representative for the Effective Time accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement;. Such agency may be changed by the Indemnifying Parties from time to time upon not less than 30 days prior written notice to Parent; provided, however, that the Stockholders’ Representative may not be removed unless holders of a majority interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. A vacancy in the position of Stockholders’ Representative may be filled by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholders’ Representative. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Indemnifying Parties.
(iiib) All decisions The Stockholders’ Representative shall not be liable for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and actions in the exercise of reasonable judgment. The Indemnifying Parties on whose behalf the Escrow Amount was contributed to the Escrow Fund shall indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders' ’ Representative shall be binding upon (“Stockholders’ Representative Expense”). Following the Survival Date and the resolution of all of pending claims made by the Stockholders Indemnified Parties for Losses, and no Stockholder from time to time thereafter, the Stockholders’ Representative shall have the right to objectrecover the Stockholders’ Representative Expenses from any remaining portion of the Escrow Fund, dissentprior to any distribution to the Indemnifying Parties, protest or otherwise contest if the same;remaining portion of the Escrow Fund is insufficient, from any Contingent Amount that may be payable, and prior to any such distribution, shall deliver to Parent a certificate setting forth the Stockholders’ Representative Expenses actually incurred. Upon receipt of such certificate, Parent shall pay such Stockholders’ Representative Expenses to the Stockholders’ Representative. Notwithstanding the foregoing, the Stockholders’ Representative’s right to recover Stockholders’ Representative Expenses shall not prejudice Parent’s right to recover the full amount of indemnifiable Losses that Parent is entitled to recover from the Escrow Fund or otherwise.
(ivc) Parent shall be able to rely conclusively on the instructions and decisions A decision, act, consent or instruction of the Stockholders' Representative as ’ Representative, including but not limited to any other actions required an amendment, extension or permitted waiver of this Agreement pursuant to Section 10.11 and Section 10.13 hereof, shall constitute a decision of the Indemnifying Parties and shall be taken by the Stockholders' Representative hereunderfinal, binding and no party shall have any cause of action against Parent to the extent Parent has relied conclusive upon the instructions Indemnifying Parties; and Parent may rely upon any such decision, act, consent or decisions instruction of the Stockholders' Representative;
(v) all actions’ Representative as being the decision, decisions and instructions act, consent or instruction of the Indemnifying Parties. Parent is hereby relieved from any liability to any Person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' ’ Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer or effect the waiver of any condition to the obligations of the Company Stockholders to consummate the transactions contemplated hereby, including (i) the ability and any amendment to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Company Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, ▇ as their representative and agent under this Agreement (in such capacity, the "Stockholders' Stockholders Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇The Company Stockholders, MD, or his substitute solely in their capacity as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority stockholders of the outstanding Shares shall select another representative to fill such vacancy andCompany, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, Stockholders Representative (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches the waiver of any condition to the obligations by Parent under this Agreementof the Company Stockholders to consummate the transactions contemplated hereby, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (ivii) to give and receive all notices required to be given under this Agreement after the Effective TimeAgreement, (iii) settle any and all disputes between the Company Stockholders and the Buyer or the Surviving Corporation which may arise from time to time as a result of the transactions contemplated hereby, (iv) to execute any and all government and other forms relating to Taxes (as defined in Section 2.8(a)(i)) and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Company Stockholders after the Effective Time by the terms of this Agreement;, including, without limitation, Article VI hereof. Each of the Company Stockholders agrees to individually perform any of the above obligations if requested by the Buyer.
(iiic) In the event that the Stockholders Representative dies, becomes unable to perform his responsibilities hereunder or resigns from such position, Company Stockholders (or their successors in the case of any Company Stockholder that dies) holding, prior to the Closing, a majority of the Common Shares as set forth on Schedule I attached hereto shall select another representative to fill such vacancy and such substituted representative shall be deemed to be the Stockholders Representative for all purposes of this Agreement.
(d) All decisions and actions by the Stockholders' Stockholders Representative hereunder shall be binding upon all of the Stockholders Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same;.
(ive) Parent By their adoption of this Agreement and the approval of the Merger, the Company Stockholders agree that:
(i) the Surviving Corporation shall be able to rely conclusively on the instructions and decisions of the Stockholders' Stockholders Representative as to any other actions required or permitted to be taken by the Stockholders' Stockholders Representative hereunder, and no party Party shall have any cause of action against Parent to the extent Parent has relied Surviving Corporation for any action taken by the Surviving Corporation in reliance upon the instructions or decisions of the Stockholders' Stockholders Representative;
(vii) all actions, decisions and instructions of the Stockholders' Stockholders Representative shall be conclusive and binding upon all of the Company Stockholders and no Company Stockholder shall have any cause of action against the Stockholders' Stockholders Representative for any action takentaken or omitted, decision made or instruction given by the Stockholders' Stockholders Representative under this Agreementarising out of or in connection with the acceptance or administration of his duties hereunder, except for fraud or willful breach of this Agreement by the Stockholders' Stockholders Representative;
(viiii) the provisions of this Section 3.7. 1.5 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Company Stockholder may have in connection with the transactions contemplated by this Agreement;
(viiiv) remedies available at law for any breach of the provisions of this Section 3.7. 1.5 are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation or the Company brings an action to enforce the provisions of this Section 3.7.1.5; and
(viiiv) the provisions of this Section 3.7. 1.5 shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, representatives and successors of each Company Stockholder, and any references in this Agreement to a Company Stockholder or the Company Stockholders shall mean and include the successors to the Stockholder's Company Stockholders' rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
(f) All fees and expenses incurred by the Stockholder Representative after the Closing shall be the responsibility of the Company Stockholders on a pro rata basis and the Stockholders Representative shall have the right to reimbursement of such fees and expenses from any amounts to be distributed to the Company Stockholders.
(g) The Company Stockholders shall severally indemnify on a pro rata basis the Stockholders Representative and hold him harmless against any loss, liability or expense incurred without fraud or willful breach of this Agreement on the part of the Stockholders Representative and arising out of or in connection with the acceptance or administration of his duties hereunder. Any amounts payable to the Stockholders Representative hereunder shall be the responsibility of the Company Stockholders on a pro rata basis.
Appears in 1 contract
Stockholders’ Representative. Xiao Mou Zhang is hereby appointed as agent and attorney-in-fact (athe “Stockholders’ Representative”) In order to efficiently administer the transactions contemplated herebyfor each Stockholder, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations give and receive notices and communications to or by Parent for any purpose under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' RightsAdditional Agreements, (ii) to take all action necessary against Parent in connection agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with breaches orders of obligations by Parent courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article X or other disputes arising under or related to this Agreement, (iii) to determine enter into and deliver the Stockholders to whom consideration from Parent shall be distributed and Escrow Agreement on behalf of each of the amount of consideration to be so distributedStockholders, (iv) to give authorize or object to delivery to Parent or the Surviving Corporation of the Escrow Fund, or any portion thereof, in satisfaction of indemnification claims by Parent or the Surviving Corporation in accordance with the provisions of the Escrow Agreement, (v) to act on behalf of Stockholders in accordance with the provisions of the Agreement, the securities described herein and receive any other document or instrument executed in connection with the Agreement and the Merger and (vi) to take all notices required actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to be given under this Agreement time upon no less than twenty (20) days prior written notice to the Parent and, if after the Effective Time, and (v) to take any and the Surviving Corporation, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all additional action as is contemplated to be taken by or on behalf of the Stockholders after Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time transaction contemplated by this Agreement agrees to such removal. Any vacancy in the terms position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement;
(iii) All decisions and actions by . Any removal or change of the Stockholders' ’ Representative shall not be binding upon effective until written notice is delivered to Parent. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services as such. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders of the Company and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions final, binding and decisions conclusive upon each of the Stockholders' Representative as to any other actions required or permitted to be taken by . The Stockholders shall severally indemnify the Stockholders' ’ Representative hereunderand hold him harmless against any loss, and no party shall have any cause of action against Parent to liability, or expense incurred without gross negligence or bad faith on the extent Parent has relied upon the instructions or decisions part of the Stockholders' Representative;
(v) all actions, decisions ’ Representative and instructions arising out of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach acceptance or administration of the provisions of this Section 3.7his duties hereunder. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references Notwithstanding anything in this Agreement Article 13.14 to the contrary, the Stockholders’ Representative (in his capacity as such) shall have no obligation or authority with respect to any indemnification claims against a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisemade by a Parent Indemnitee under Article X hereof.
Appears in 1 contract
Stockholders’ Representative. (a) In order to efficiently administer By virtue of the transactions contemplated hereby, including (i) approval and adoption of this Agreement by the ability to take all action necessary against Parent in connection with breaches requisite consent of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Company Stockholders, each of the Stockholders hereby desire Company Holders shall be deemed to designate have agreed to appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as its agents and attorneys-in-fact (the “Stockholders’ Representative”) for and on behalf of the Company Holders to give and receive notices and communications, MDto authorize payment to any Indemnified Party from the Escrow Account in satisfaction of claims by any Indemnified Party, as their representative to object to such payments, to agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to any other claim by any Indemnified Party against any Company Holder or by any such Company Holder against any Indemnified Party or any dispute between any Indemnified Party and any such Company Holder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in such capacitythe judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement or the Escrow Agreement. Such agency may be changed by the Company Holders with the right to at least eighty-five percent (85%) of the Pro Rata Portions of the Escrow Fund from time to time. Notwithstanding the foregoing, the "Stockholders' ’ Representative may resign at any time by providing written notice of intent to resign to the Company Holders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholders’ Representative"), and the Stockholders’ Representative shall not receive any compensation for their services.
(b) In The Stockholders’ Representative shall not be liable to any Company Holder for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith, even if such act or omission constitutes negligence on the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇part of such Stockholders’ Representative. The Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, MDexpress or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts. The Stockholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or his substitute presented by such professionals, and any action taken by the Stockholders’ Representative based on such reliance shall be deemed conclusively to have been taken in good faith. The Company Holders shall indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred on the part of the Stockholders’ Representative (so long as the Stockholders' ’ Representative were acting in good faith in connection therewith) and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders’ Representative (“Stockholders’ Representative Expenses”). The Stockholders’ Representative shall have the right to retain Stockholders’ Representative’s Expenses from the Representative Reimbursement Amount prior to any distribution to the Company Holders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholders’ Representative’s Expenses actually incurred. A decision, act, consent or instruction of the Stockholders’ Representative, diesincluding an amendment, becomes unable to perform his responsibilities hereunder extension or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes waiver of this Agreement pursuant to Sections 9.4 or 9.5 hereof, shall constitute a decision of the Company Holders and shall be final, binding and conclusive upon the documents delivered pursuant heretoCompany Holders.
(c) By virtue of Certain Company Holders (the adoption of this Agreement and “Advisory Group”) have concurrently herewith entered into a letter agreement with the approval of the Merger Stockholders’ Representative regarding direction to be provided by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as Advisory Group to the Stockholders' ’ Representative, and any substitute Stockholders' Representative . The Advisory Group shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions by the Stockholders' Representative shall be binding upon all of the Stockholders and incur no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as liability to any other actions required Company Holder while acting in good faith and arising out of or permitted to be taken by the Stockholders' Representative hereunder, and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
acceptance or administration of their duties (vii) remedies available at law for it being understood that any breach act done or omitted pursuant to the advice of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation counsel shall be entitled to temporary and permanent injunctive relief without the necessity conclusive evidence of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7such good faith).; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Aratana Therapeutics, Inc.)
Stockholders’ Representative. (a) In order to efficiently administer After the transactions contemplated hereby, including (i) approval by a majority of the ability to take all action necessary against Parent in connection with breaches Stockholders of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD▇, as their representative Stockholders’ Representative, shall have exclusive power and authority on behalf of the Stockholders and, prior to the Effective Time on behalf of the Company, with respect to any action taken pursuant to this Agreement (in such capacityincluding with respect to waivers and adjustments to, receipt of, and distribution of, the "Stockholders' Representative"aggregate Applicable Per Share Merger Consideration).
(b) In The Stockholders’ Representative shall not (i) be liable to the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MDholders of Company Capital Stock for any actions taken or omitted to be taken by it or any agent employed by it under or in connection with this Agreement or the transactions contemplated hereby, or his substitute (ii) owe any fiduciary duty or have any fiduciary responsibility to any of the holders of Company Capital Stock or the Company as a result of actions taken as the Stockholders' ’ Representative pursuant to this Agreement, except for such actions taken or omitted to be taken resulting from the Stockholders’ Representative’s gross negligence, dies, becomes unable bad faith or willful misconduct. Provided that all payments and distributions made by or at the direction of the Stockholders’ Representative hereunder to perform his responsibilities hereunder or resigns from the holders of Company Capital Stock are made based on the good faith determination of each such positionholder’s respective Applicable Portion, the Stockholders holdingStockholders’ Representative shall not be liable to any holder of Company Capital Stock if the apportionment with respect to such payment or distribution is subsequently determined to have been made in error, immediately prior and the sole recourse of any holder of Company Capital Stock to the Closingwhom such payment or distribution was due, a majority but not made, shall be to recover from other holders of Company Capital Stock any payment in excess of the outstanding Shares shall select another representative amount to fill such vacancy and, upon written notice which they are determined to Parent, such substituted representative shall be deemed have been entitled pursuant to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant heretoAgreement.
(c) By virtue If the Stockholders’ Representative incurs any out-of-pocket expenses (including any reasonable fees and expenses of the adoption of counsel) in its capacity as Stockholders’ Representative under this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches any of obligations by Parent under this Agreementthe transactions contemplated hereby, (iii) to determine the Stockholders to whom consideration from Parent such out-of-pocket expenses shall be distributed and the amount of consideration to be so distributedpaid from, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take or reimbursed through deduction from any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after the Effective Time by the terms of this Agreement;
(iii) All decisions and actions amounts received by the Stockholders' ’ Representative shall that would otherwise be binding upon all distributable to holders of Company Capital Stock in accordance with their respective Applicable Portions.
(d) Buyer and the Stockholders and no Stockholder Surviving Corporation shall have the right to object, dissent, protest rely upon all actions taken or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions and decisions of the Stockholders' Representative as to any other actions required or permitted omitted to be taken by the Stockholders' ’ Representative hereunder, and no party shall have any cause of action against Parent pursuant to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud all of which actions or willful breach of this Agreement by omissions shall be legally binding upon the Stockholders' Representative;.
(vie) the provisions The grant of this Section 3.7. are independent and severable, are irrevocable and authority provided for herein (i) is coupled with an interest and shall be enforceable notwithstanding any rights irrevocable and survive the death, incompetency, bankruptcy or remedies that liquidation of any Stockholder may have in connection with and (ii) shall survive the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach consummation of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each StockholderMerger, and any references action taken by the Stockholders’ Representative pursuant to the authority granted in this Agreement to a shall be effective and absolutely binding on each Stockholder notwithstanding any contrary action of or direction from such Stockholder, except for actions or omissions of the Stockholders shall mean and include the successors to the Stockholder's rights hereunderStockholders’ Representative constituting gross negligence, whether pursuant to testamentary disposition, the laws of descent and distribution bad faith or otherwisewillful misconduct.
Appears in 1 contract
Sources: Merger Agreement (Selway Capital Acquisition Corp.)
Stockholders’ Representative. (a) In order to efficiently administer By virtue of the transactions contemplated hereby, including (i) approval and adoption of this Agreement by the ability to take all action necessary against Parent in connection with breaches requisite consent of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Company Stockholders, each of the Company Stockholders hereby desire (other than such Company Stockholders, if any, who have perfected dissenters’ or appraisal rights under Delaware or the applicable laws of the State of California) shall be deemed to designate ▇have agreed to appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as its agent and attorney-in-fact (the “Stockholders' ’ Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative ”) for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby designated as the Stockholders' Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii) The Stockholders hereby authorize the Stockholders' Representative, (i) after the Effective Time to approve any settlement of claims by holders of Dissenters' Rights, (ii) to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, (iii) to determine the Stockholders to whom consideration from Parent shall be distributed and the amount of consideration to be so distributed, (iv) to give and receive all notices required to be given under this Agreement after the Effective Time, and (v) to take any and all additional action as is contemplated to be taken by or on behalf of the Stockholders after to give and receive notices and communications, to authorize payment to any Indemnified Party from the Effective Time Earnout Amount in satisfaction of claims by any Indemnified Party, to object to such payments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party against any Company Stockholder or by any such Company Stockholder against any Indemnified Party or any dispute between any Indemnified Party and any such Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing or (ii) specifically mandated by the terms of this Agreement;. Such agency may be changed by the Company Stockholders with the right to a majority of the Pro Rata Portions of the Earnout Amount; provided, however, that the Stockholders’ Representative may not be removed unless holders of a two-thirds interest of the Earnout Amount agree to such removal and to the identity of the substituted agent. Notwithstanding the foregoing, the Stockholders’ Representative may resign at any time by providing written notice of intent to resign to the Company Stockholders, which resignation shall be effective upon the earlier of (A) thirty (30) calendar days following delivery of such written notice or (B) the appointment of a successor by the holders of a majority in interest of the Earnout Amount. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for its services.
(iiib) All decisions The Stockholders’ Representative shall not be liable to the Company Stockholders for any act done or omitted hereunder as Stockholders’ Representative while acting in good faith and actions in the exercise of reasonable judgment, even if such act or omission constitutes negligence on the part of such Stockholders’ Representative. The Stockholders’ Representative shall only have the duties expressly stated in this Agreement and shall have no other duty, express or implied. The Stockholders’ Representative may engage attorneys, accountants and other professionals and experts. The Stockholders’ Representative may in good faith rely conclusively upon information, reports, statements and opinions prepared or presented by such professionals, and any action taken by the Stockholders' ’ Representative based on such reliance shall be binding upon all deemed conclusively to have been taken in good faith and in the exercise of reasonable judgment. The Company Stockholders shall indemnify the Stockholders’ Representative and hold the Stockholders’ Representative harmless against any loss, liability or expense incurred on the part of the Stockholders Stockholders’ Representative (so long as the Stockholders’ Representative was acting in good faith in connection therewith) and no Stockholder arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholders’ Representative (“Stockholders’ Representative Expenses”). The Stockholders’ Representative shall have the right to objectretain Stockholders’ Representative Expenses from the Representative Reimbursement Amount prior to any distribution to the Company Stockholders. A decision, dissentact, protest consent or otherwise contest instruction of the same;Stockholders’ Representative, including an amendment, extension or waiver of this Agreement pursuant to Sections 8.4 or 8.5 hereof, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders.
(ivc) Parent The Indemnified Parties shall be able entitled to rely conclusively on the instructions and decisions of the Stockholders' ’ Representative with respect to the indemnification obligations of the Company Stockholders under this Article VII, including the defense or settlement of any claims or the making of payments with respect thereto, or as to any other actions required or permitted to be taken by the Stockholders' ’ Representative hereunder, hereunder (including any amendment or waiver under Sections 8.4 and no party shall have any cause of action against Parent to the extent Parent has relied upon the instructions or decisions of the Stockholders' Representative;
(v) all actions, decisions and instructions of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach of the provisions of this Section 3.7. are inadequate; therefore, Parent, Merger Subsidiary and/or the Surviving Corporation shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.78.5).; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise.
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Sources: Merger Agreement (Kyphon Inc)
Stockholders’ Representative. (a) In order to efficiently administer the transactions contemplated herebyATW Master Fund II, including (i) the ability to take all action necessary against Parent in connection with breaches of obligations by Parent under this Agreement, and (ii) the orderly distribution of Merger Consideration from Parent to the Stockholders, the Stockholders hereby desire to designate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, as their representative (in such capacity, the "Stockholders' Representative").
(b) In the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MD, or his substitute as the Stockholders' Representative, dies, becomes unable to perform his responsibilities hereunder or resigns from such position, the Stockholders holding, immediately prior to the Closing, a majority of the outstanding Shares shall select another representative to fill such vacancy and, upon written notice to Parent, such substituted representative shall be deemed to a Stockholders' Representative for all purposes of this Agreement and the documents delivered pursuant hereto.
(c) By virtue of the adoption of this Agreement and the approval of the Merger by the Stockholders at a meeting of Stockholders (or by written consent in lieu of a meeting) pursuant to, and in accordance with, the applicable provisions of the DGCL, each Stockholder regardless of whether or not such Stockholder votes in favor of the adoption of this Agreement and the approval of the Merger at such meeting or by written consent) that is not a holder of Dissenting Shares hereby agrees that:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L.P. is hereby designated appointed as agent and attorney-in-fact (the “Stockholders' ’ Representative, and any substitute Stockholders' Representative shall be elected as set forth in Section 3.7.(b);
(ii”) The Stockholders hereby authorize the Stockholders' Representativefor each Stockholder, (i) after the Effective Time to approve give and receive notices and communications to or by Parent and Purchaser for any settlement of claims by holders of Dissenters' Rightspurpose under this Agreement, (ii) to take all action necessary against Parent in connection agree to, negotiate, enter into settlements and compromises of and demand arbitration and comply with breaches orders of obligations by Parent courts and awards of arbitrators with respect to any indemnification claims (including Third-Party Claims) under Article XI or other disputes arising under or related to this Agreement, (iii) to determine act on behalf of Stockholders in accordance with the Stockholders to whom consideration from Parent shall be distributed provisions of the Agreement, the securities described herein and any other document or instrument executed in connection with the Agreement and the amount of consideration to be so distributed, Merger and (iv) to give and receive take all notices required actions necessary or appropriate in the judgment of the Stockholders’ Representative for the accomplishment of the foregoing. Such agency may be changed by the Stockholders from time to be given under this Agreement time upon no less than twenty (20) days prior written notice to the Purchaser and, if after the Effective Time, and (v) to take any and the Surviving Corporation, provided, however, that the Stockholders’ Representative may not be removed unless holders of at least 51% of all additional action as is contemplated to be taken by or on behalf of the Stockholders after Company Common Stock on an as-if converted basis outstanding immediately prior to the Effective Time transaction contemplated by this Agreement agrees to such removal. Any vacancy in the terms position of Stockholders’ Representative may be filled by approval of the holders of at least 51% of all of the Company Common Stock on an as-if converted basis outstanding immediately prior to the transaction contemplated by this Agreement;
(iii) All decisions and actions by . Any removal or change of the Stockholders' ’ Representative shall not be binding upon effective until written notice is delivered to Purchaser. No bond shall be required of the Stockholders’ Representative, and the Stockholders’ Representative shall not receive any compensation for his services. Notices or communications to or from the Stockholders’ Representative shall constitute notice to or from the Stockholders. The Stockholders’ Representative shall not be liable for any act done or omitted hereunder while acting in good faith and in the exercise of reasonable business judgment. A decision, act, consent or instruction of the Stockholders’ Representative shall, for all purposes hereunder, constitute a decision, act, consent or instruction of all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same;
(iv) Parent shall be able to rely conclusively on the instructions final, binding and decisions conclusive upon each of the Stockholders' Representative as to any other actions required or permitted to be taken by . The Stockholders shall severally indemnify the Stockholders' ’ Representative hereunderand hold him harmless against any loss, and no party shall have any cause of action against Parent to liability, or expense incurred without gross negligence or bad faith on the extent Parent has relied upon the instructions or decisions part of the Stockholders' Representative;
(v) all actions, decisions ’ Representative and instructions arising out of the Stockholders' Representative shall be conclusive and binding upon all of the Stockholders and no Stockholder shall have any cause of action against the Stockholders' Representative for any action taken, decision made or instruction given by the Stockholders' Representative under this Agreement, except for fraud or willful breach of this Agreement by the Stockholders' Representative;
(vi) the provisions of this Section 3.7. are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement;
(vii) remedies available at law for any breach acceptance or administration of the provisions of his duties hereunder. Notwithstanding anything in this Section 3.7. are inadequate; therefore14.14 to the contrary, Parent, Merger Subsidiary and/or the Surviving Corporation Stockholders’ Representative (in its capacity as such) shall be entitled have no obligation or authority with respect to temporary and permanent injunctive relief without the necessity of proving damages if either Parent, Merger Subsidiary and/or the Surviving Corporation brings an action to enforce the provisions of this Section 3.7.; and
(viii) the provisions of this Section 3.7. shall be binding upon the executors, heirs, legal representatives, personal representatives, successor trustees, and successors of each Stockholder, and any references in this Agreement to indemnification claims against a Stockholder or the Stockholders shall mean and include the successors to the Stockholder's rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwisemade by a Purchaser Indemnitee under Section 11.1(a).
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