Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Emc Corp), Agreement and Plan of Merger (Vmware, Inc.)
Representative. (a) At In addition to the Effective Time, Xxxxx X. Xxxxxxxx will be constituted other rights and appointed as the Representative, and authority granted to the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founderselsewhere in this Agreement, by virtue of its adoption of this Agreement and approval each of the MergerSurge Equityholders hereby to the fullest extent permitted by applicable Law, will be deemed to have appointed irrevocably constitutes and constituted appoints the Representative as their agent and its true and lawful proxy, attorney-in-fact with the powers , agent and authority as set forth in this Agreement. All such actions of representative to act (provided, however, that the Representative taken shall have no obligation to the Surge Equityholders to act other than as expressly provided herein), from and after the date hereof and to do any and all lawful things and execute and deliver any and all documents, for, in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for name of and on behalf of such Surge Equityholder, and in such Surge Equityholder’s name, place and stead, that may be necessary, convenient or appropriate to facilitate the Indemnifying Securityholders consummation of the transactions contemplated by this Agreement, including: (i) execution of the documents and Indemnifying Founders certificates pursuant to (1) enter into the Escrow this Agreement; (2ii) give receipt of payments under or pursuant to this Agreement and receive disbursement thereof, as contemplated by this Agreement; (iii) receipt and forwarding of notices and communications pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) giving or from Parent (agreeing to, on behalf of itself all or any other Indemnified Personof the Surge Equityholders, any and all consents, waivers, amendments or modifications deemed by the Representative, in his sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) and/or the Escrow Agent relating to amending this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactionsinstruments to be delivered to Motor or ParentCo pursuant to this Agreement; (3vii) authorize deliveries to Parent of cash (A) disputing or other property refraining from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Persondisputing, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Surge Equityholder relative to any amendment Surge Merger Consideration to be received by such Surge Equityholder under this Agreement, the Escrow Agreement or any exhibitagreements contemplated hereby, annex any claim made by Motor or schedule hereto ParentCo under this Agreement or thereto (including for the purpose of amending addresses or sharing percentages)other agreements contemplated hereby, (8) enter into B) negotiating and compromising, on behalf of each such Surge Equityholder, any waiver dispute that may arise under, and exercising or extension pursuant to Section 6.4 refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (9C) cause executing, on behalf of each such Surge Equityholder, any settlement agreement, release or other document with respect to be paid to such dispute or remedy; (viii) voting the Indemnifying Securityholders Surge Equityholders’ shares of ParentCo Common Stock that are held in the Escrow Account at any balance meeting of ParentCo’s shareholders, provided that the Representative Fund Amount not used shall, without the prior written consent of ParentCo, vote such shares of ParentCo Common stock in accordance the same proportion as the votes cast by all other shares voting on each particular matter at such meeting of ParentCo’s shareholders, and an irrevocable proxy with the terms of the Escrow Agreement. The Representative will be the sole respect thereto is hereby granted, and exclusive means of asserting (ix) engaging attorneys, accountants, agents or addressing any of the above consultants on behalf of the Indemnifying Securityholders Surge Equityholders in connection with this Agreement or any other agreement contemplated hereby and Indemnifying Founderspaying any fees related thereto. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall to the fullest extent permitted by applicable Law, be absolutely and irrevocably binding on each Surge Equityholder as if such Surge Equityholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Surge Equityholder’s individual capacity, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Surge Equityholder shall have the right to recover General Representative Expenses from object, dissent, protest or otherwise contest the Representative Fund as such General Representative Expenses are incurredsame. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.58
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the RepresentativeEach Supporting Stockholder hereby irrevocably grants to, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Foundersappoints, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their its representative, agent and true and lawful attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Supporting Stockholder, with the powers same effect as if taken by such Supporting Stockholder, with full power and authority to take any and all actions and execute any and all documents and agreements in such Supporting Stockholder’s name, place and stead and on its behalf, with the same effect as set forth if such action were taken or such document or agreement were executed by such Supporting Stockholder, in this connection with any matter or thing relating to the Merger, the Merger Agreement. All such actions , the Collateral Agreements and any of the Representative taken in accordance with this Section 7.16 shall be deemed transactions contemplated thereby, including, without limitation, the power and authority to be facts ascertainable outside (i) institute, make or pursue claims, counterclaims or defenses, (ii) enter into, modify, amend, implement or waive any contracts, including the merger agreement Merger Agreement and shall be binding on the Indemnifying Securityholders. The Representative will be Collateral Agreements, (iii) compromise, surrender or settle any disputes or claims or make any other determination or take any other action or assert or compromise any claim relating to the exclusive agent for Merger Agreement, the Collateral Agreements and on behalf any of the Indemnifying Securityholders transactions contemplated thereby, including any adjustments in connection with the determination of the Actual Closing Working Capital, Actual Closing Cash, Actual Closing Indebtedness and Indemnifying Founders Actual Seller Transaction Expenses pursuant to Sections 2.7 and 2.8 of the Merger Agreement, (1iv) enter into receive and deliver at the Escrow Agreement; Closing certificates and other documents, (2v) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages)such Supporting Stockholder, (8) vi) enter into amendments of the Merger Agreement and the Collateral Agreements; provided, that Representative will not, as a result of such appointment, be granted the power and authority to take any action or enter into any waiver agreement that (x) agrees or extension pursuant subjects any Supporting Stockholder to Section 6.4 personal liability for claims or other liabilities, except as expressly provided herein, or (y) changes or modifies the ownership percentage in Holding (as of immediately prior to the Effective Time) of such Supporting Stockholder, and (9vii) cause to be paid to the Indemnifying Securityholders any balance receive service of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative process in connection with any claims under the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableMerger Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Energizer Holdings, Inc.)
Representative. (a) At Effective upon and by virtue of the Effective TimeMember Approval, Xxxxx X. Xxxxxxxx will be constituted and without any further act of any of the Members, Optionholders or Warrantholders, the Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and attorney in fact (coupled with an interest) for all the Representative hereby accepts such appointment. Each Indemnifying Securityholder Members, Optionholders and Indemnifying FoundersWarrantholders for all purposes under this Agreement including the full power and authority on the Members’, by virtue of its adoption of Optionholders’ and Warrantholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and approval the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (iii) to receive and disburse to, or caused to be received or disbursed to, any Member, Optionholder or Warrantholder any funds received on behalf of such Member, Optionholder or Warrantholder under this Agreement (including, for the avoidance of doubt, any portion of the MergerMerger Consideration) or otherwise, will be deemed (iv) to have appointed and constituted withhold any amounts received on behalf of any Member, Optionholder or Warrantholder pursuant to this Agreement (including, for the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions avoidance of doubt, any portion of the Representative taken in accordance with this Section 7.16 shall be deemed Merger Consideration) or to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and satisfy (on behalf of the Indemnifying Securityholders Members, Optionholders and Indemnifying Founders to Warrantholders) any and all obligations or liabilities of any Member, Optionholder, Warrantholder or the Representative in the performance of any of their commitments hereunder (1) enter into including, for the Escrow Agreement; (2) give and receive notices and communications to or from Parent avoidance of doubt, the satisfaction of payment obligations (on behalf of itself or any other Indemnified Personthe Members, Optionholders and Warrantholders) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance adjustment of hisClosing Cash Proceeds contemplated by Section 3.03), her (v) to execute and deliver any amendment or its duties waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Member, Optionholder or Warrantholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Representative Closing and (vii) to take all other actions to be taken by or on behalf of any Member, Optionholder or Warrantholder in connection with General Liability Claims will be borne this Agreement and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the “General consent of the Representative Expenses”)and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Member and Optionholder. All reasonable expenses, if any, incurred decisions and actions by the Representative in connection with the performance of hisshall be binding upon each Member and Optionholder, her and no Member, Optionholder or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Warrantholder shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodshall have no duties or obligations hereunder, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Lossesincluding any fiduciary duties, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholdersexcept those set forth herein, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses duties and obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Grand Canyon Education, Inc.)
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by By virtue of its the approval and adoption of this Agreement Agreement, the Transaction Merger and approval the transactions contemplated hereby by the requisite consent of the Mergerholders of shares of Company Common Stock, will each of the Stockholders shall be deemed to have irrevocably authorized, directed and appointed and constituted Wayzata Opportunities Fund II, L.P. (the Representative “Representative”) as their agent and true and lawful its agent, proxy, attorney-in-fact with the powers and authority as set forth in representative for such Stockholder under this Agreement. All such actions Agreement and all of the Representative taken in accordance with this Section 7.16 shall be deemed other Transaction Documents to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and take such action on behalf of such Stockholder, and to exercise such rights, powers and authority, as are authorized, delegated and granted to the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating Representative pursuant to this Agreement, the Escrow Agreement or any of the other documents Transaction Documents, or as the Representative shall deem necessary, appropriate, advisable or desirable in connection with any of the transactions contemplated by this Agreement or any of the Transactions; other Transaction Documents, including, without limitation, the power to (3i) authorize deliveries execute and deliver all amendments and waivers to Parent this Agreement and the other Transaction Documents that the Representative deems necessary or appropriate, (ii) execute and deliver all other amendments and waivers, ancillary agreements, stock powers, certificates and documents that the Representative deems necessary or appropriate in connection with the consummation of cash the transactions contemplated by this Agreement, (iii) receive funds, make payments of funds, and give receipts for funds, (iv) make disputes regarding, and to agree to, adjustments to the Merger Consideration, (v) engage and retain advisors and consultants with respect to the transactions contemplated by this Agreement and the other Transaction Documents or any disputes or other property from controversies arising out of any thereof or the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent subject matter thereof, (vi) act on behalf of itself the Stockholders and/or the Optionholders in any litigation, arbitration or other proceeding involving this Agreement or any other Indemnified PersonTransaction Document (including any proceeding to enforce this Agreement), (vii) act for the Stockholders and/or the Optionholders with regard to matters pertaining to indemnification referred to in this Agreement, including by not objecting the power to such claims); compromise or settle any indemnity claim and to transact matters of litigation, (4viii) object to such claims deal with the Administrative Expense Account in accordance with Section 7.6 and Section 7.13; 1.15, (5ix) consent or agree todistribute any portion of the Administrative Expense Amount to the Exchange Agent (for further distribution to the Stockholders (other than the Specified Stockholders)), negotiate, enter into settlements and compromises ofto the Specified Stockholders, and demand arbitration to the Surviving Company (for further distribution to the Participating Optionholders and comply with Orders with respect tothe Bonus Payment Recipients), such claims; (6x) take all actions necessary or appropriate determine whether the conditions to Closing set forth in Article VI have been satisfied and supervise the judgment of Closing, including the right to waive any condition, as determined by the Representative for the accomplishment of the foregoingin its sole discretion, in each case without having (xi) terminate this Agreement pursuant to seek or obtain the consent of any Person under any circumstance; Article VIII, (7xii) subject to Section 6.3elect, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder the Stockholders and/or Participating Optionholders, in connection with any amendment distribution of the Indemnity Escrow Fund from the Indemnity Escrow Account to this Agreement, the Escrow Agreement Holdco or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used other Parent Indemnified Parties in accordance with the terms of the Indemnity Escrow Agreement. The Representative will , to substitute any amount of Indemnity Escrow Shares to be so distributed by the sole Escrow Agent with cash (any such cash, “Substituted Cash”), including cash from the Administrative Expense Account and exclusive means of asserting (xiii) do or addressing refrain from doing any of the above further act or deed on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against Stockholders and/or the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by Optionholders that the Representative will be deems necessary, appropriate, advisable or desirable in its sole discretion relating to the subject matter of this Agreement or any of the other Transaction Documents as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable fully and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties completely as the Representative in connection with General Liability Claims will be borne and paid by Stockholders and/or the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, Optionholders could do if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablepersonally present.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Andina Acquisition Corp. II)
Representative. (a) At the Effective TimeSeller, Xxxxx X. Xxxxxxxx will be constituted each Unitholder and, upon execution and appointed as the Representative, delivery to Purchaser and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval Parent of the MergerAcknowledgment and Joinder Agreement, will be deemed to have appointed each other Seller Investor Party hereby appoints Pxxx Xxxx as its representative and constituted the Representative as their agent and its true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, in its name, place and stead, in any and all capacities, in connection with the powers transactions contemplated by this Agreement and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give , granting unto said attorney-in-fact and receive notices agent, full power and communications authority to do and perform each and every act and thing requisite and necessary to be done in connection with the transactions contemplated hereby and thereby as fully to all intents and purposes as it might or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent could do in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of person. Without limiting the foregoing, in Seller, each case without having Unitholder and each other Seller Investor Party hereby irrevocably appoint Representative as their sole representative to seek or obtain act as the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for attorney-in-fact and agent and on behalf of each Indemnifying Securityholder of them for the purposes of: (i) supervising the Closing; (ii) taking any and Indemnifying Founder any all actions that may be necessary or desirable, as determined by Representative, in his sole discretion, in connection with the amendment to of this Agreement, or waiver of any provision in this Agreement; (iii) accepting notices (including, without limitation, Notices of Claim) on their behalf; (iv) to act for each of them with regard to matters pertaining to indemnification referred to in this Agreement and the Escrow Agreement, including the power to compromise any indemnity claim on their behalf; (v) executing and delivering, on behalf of Seller, such Unitholder and such other Seller Investor Party, any and all notices, documents or certificates to be executed by any of them in connection with this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby; (vi) to act for each of them with regard to matters pertaining to litigation (with the Unitholders and the other Seller Investor Parties hereby agreeing severally, but not jointly, to contribute, in respect of any amounts paid (or required to be paid) in settlement or compromise of such matters, their pro rata portion of such amounts based on their Pro Rata Share); and (vii) granting any exhibitconsent, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 approval on behalf of each of them under this Agreement and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The As the representative under this Agreement and the Escrow Agreement, Representative will be shall act as the sole agent for Seller, all Unitholders and exclusive means all other Seller Investor Parties, shall have authority to bind each such Person in accordance with this Agreement, and Purchaser may rely on such appointment and authority until the receipt of asserting or addressing any notice of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated a successor upon two (2) Business Days’ prior written notice to Purchaser. Purchaser may conclusively rely upon, without independent verification or investigation, all decisions made by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative this Agreement in connection with General Liability Claims will be borne writing and paid signed by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”)Representative. All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.57
Appears in 1 contract
Samples: Asset Purchase Agreement (AgEagle Aerial Systems Inc.)
Representative. (a) At By virtue of the Effective Timeexecution of this Agreement or acceptance of any consideration pursuant to this Agreement, Xxxxx X. Xxxxxxxx will be constituted each Unitholder irrevocably nominates, constitutes and appointed appoints the Representative as the true and lawful agent and attorney‑in‑fact of such Unitholder, with full power in his, her or its name and on his, her or its behalf to act according to the terms of the Transaction Documents 39881135.1 ACTIVE/118012393.3 in the discretion of the Representative, and to do all things and to perform all acts, including (1) amending the Transaction Documents, (2) waiving rights, (3) discharging liabilities and obligations, (4) making all decisions relating to the determination of the Definitive Initial Purchase Consideration pursuant to Section 1.3, (5) determining, disputing and facilitating the disbursement of the Milestone Payments, the Priority Review Voucher Payments, or Royalty Payments, (6) defending and settling of any claims under Section 7.6, (7) facilitating the disbursement of the Escrow Amount (or any portion thereof) in accordance with this Agreement and the Escrow Agreement, (8) receiving from Buyer and distributing to the respective Unitholders any written reports delivered by Buyer pursuant to Section 1.6(h), and (9) executing and delivering all agreements, certificates, receipts, instructions and other instruments contemplated by, or deemed advisable in connection with, the Transaction Documents. Any such actions taken by the Representative on behalf of the Unitholders as provided hereunder shall be binding on all Unitholders, and Dxxxxxx X. Xxxxxxxxxx hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney and all authority hereby conferred is coupled with an interest interest, is granted in consideration of the mutual covenants and will agreements made herein, shall be irrevocable and will shall not be terminated by any Indemnifying Securityholder act of any one or Indemnifying Founder more Unitholders, or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according As to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for LossesTAMUS, the Representative will have must obtain written approval to defend or settle any claims of TAMUS. Furthermore, the right power of attorney provided to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior by TAMUS is revocable and subject to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicabletermination.
Appears in 1 contract
Samples: Unit Purchase Agreement (Ultragenyx Pharmaceutical Inc.)
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx Vista will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted Party hereby irrevocably appoints the Representative as their agent the agent, proxy and true and lawful attorney-in-fact with the for such Indemnifying Party for all purposes of this Agreement, including full powers and authority as set forth in this Agreement. All on such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on Party’s behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) consummate the Transactions, (2) enter into the Escrow Agreement; , (23) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (34) pay expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (5) disburse any funds received hereunder to such Indemnifying Party and each other Indemnifying Party, (6) authorize deliveries to Parent of cash or other property from the Escrow Funds Fund and legally bind each Indemnifying Securityholder Party to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (47) object to such claims in accordance with Section 7.6 and Section 7.137.7; (5) 8) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (69) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; , and (710) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Party any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder Party or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder Party or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Party or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
Appears in 1 contract
Representative. (a) At Subject to the Effective Timeterms set forth herein and effective as of the Closing, Xxxxx X. Xxxxxxxx will be Xxxxxx Altro is hereby constituted and appointed as the RepresentativeRepresentative and as agent and true and lawful attorney-in-fact for the Sellers, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying FoundersSeller, by virtue of its adoption of this Agreement and approval of the MergerTransactions, will be deemed to have appointed and constituted the Representative as their its agent and true and lawful attorney-in-fact with the powers and authority and discretion as set forth in this Agreement. All such The Representative will have full power and authority to represent the Sellers and their respective successors with respect to all matters arising under this Agreement and the Escrow Agreement, with full powers of substitution, and all actions taken by the Representative hereunder and thereunder authorized by the Sellers (or if applicable, their respective heirs, legal representatives, successors and permitted assigns) who held a majority of the Representative taken in accordance with this Section 7.16 shall be deemed voting power represented by the Shares issued and outstanding immediately prior to be facts ascertainable outside the merger agreement and shall Closing (the “Majority Holders”) will be binding on upon the Indemnifying SecurityholdersSellers and their respective executors, heirs, legal representatives and successors as if expressly confirmed and ratified in writing by each of them, and no Seller will have the right to object, dissent, protest or otherwise contest the same. The In furtherance of the foregoing and without limitation of the foregoing, the Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders Sellers to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent Buyer (on behalf of itself or any other Indemnified PersonSellers) and/or or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent Buyer of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted Working Capital Fund upon written authorization by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims)the Majority Holders; (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstancecircumstance unless otherwise specifically set forth in this Section 5.15(a); (75) subject to Section 6.37.3 and upon written authorization by the Majority Holders, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Sellers any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages)) and (6) upon written authorization by the Majority Holders, (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement7.4. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying FoundersSellers, and no Indemnifying Securityholder or Indemnifying Founder Seller will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder Seller or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder Seller or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Seller or the Representative will have received any notice thereof. All reasonable Each Seller hereby waives any and documented expensesall defenses which may be available to contest, if anynegate or disaffirm the action of the Representative taken in good faith under the Escrow Agreement or pursuant to the authority granted in this Agreement. Notwithstanding the power of attorney granted in this Section 5.15, incurred no agreement, instrument, acknowledgement or other act or document will be ineffective solely by reason of the Sellers having signed such agreement, instrument, acknowledgement or other act or document directly. Any action taken by the Representative pursuant to the authority granted in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims this Agreement will be borne effective and paid absolutely binding on the Sellers notwithstanding any contrary action of, or direction from, any such Seller, except in the case of fraud by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative. Notwithstanding anything else contained herein, Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne may not take any action that would materially and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as adversely impact any Seller without such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their Seller’s prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableconsent.
Appears in 1 contract
Representative. (a) At the Effective TimeBy executing this Agreement, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval each of the Merger, will Members shall be deemed to have irrevocably constituted and appointed IVP CIF II (PS Splitter), L.P. (in the capacity described in this Section 7.18 and constituted each successor as provided below, the Representative “Representative”) as their his, her or its agent and true and lawful attorney-in-attorney in fact with full power of substitution to act from and after the powers date hereof and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement do any and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for all things and execute any and all documents on behalf of such Members which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including but not limited to: (i) execution of the Indemnifying Securityholders documents and Indemnifying Founders certificates required pursuant to (1) enter into the Escrow this Agreement; (2ii) give except to the extent specifically provided in this Agreement receipt and receive forwarding of notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) any and all consents, waivers, amendments or modifications deemed by the Escrow Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement or any of the other documents contemplated by instruments to be delivered to the TransactionsCorporation pursuant to this Agreement; (3vii) authorize deliveries taking actions Representative is expressly authorized to Parent take pursuant to the other provisions of cash or other property from the Escrow Funds this Agreement; (viii) negotiating and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (compromising, on behalf of itself such Members, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other Indemnified Personagreement contemplated hereby and executing, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder such Members, any settlement agreement, release or other document with respect to such dispute or remedy; and Indemnifying Founder any amendment to (ix) engaging attorneys, accountants, agents or consultants on behalf of such Members in connection with this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into other agreement contemplated hereby and paying any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreementfees related thereto. The Representative will be may resign upon 30 days’ written notice to the sole and exclusive means of asserting Corporation. If the Representative is unable or addressing any unwilling to so serve, then the Members, as applicable, holding a majority of the above common units owned by such Members outstanding on behalf of the Indemnifying Securityholders and Indemnifying Foundersdate hereof, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the shall elect a new Representative. This appointment of agency All reasonable, documented out-of-pocket costs and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, expenses incurred by the Representative in connection with the performance of his, her or its duties capacity as the Representative in connection with General Liability Claims will such shall be borne and paid promptly reimbursed by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All Corporation upon invoice and reasonable expenses, if any, incurred support therefor by the Representative in connection with Representative. To the performance of hisfullest extent permitted by law, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required none of the Representative, and the Representative will not receive any compensation for of its Affiliates, or any of the Representative’s services. Notices or communications Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, the LLC or the Corporation for damages arising from any action taken or omitted to be taken by the Representative will constitute notice or any other Person with respect to the LLC or from each the Corporation, except in the case of any action or omission which constitutes, with respect to such Person, willful misconduct or fraud. Each of the Indemnifying Securityholders Covered Persons may consult with legal counsel, accountants, and other experts selected by it, and any act or Indemnifying Foundersomission suffered or taken by it on behalf of the LLC or the Corporation or in furtherance of the interests of the LLC or the Corporation in good faith in reliance upon and in accordance with the advice of such counsel, as applicable.accountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided that such counsel, accountants, or other experts were selected with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to the LLC, the Corporation or the Members for acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. [Signature Page Follows This Page]
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed Each Indemnitor appoints Xxxxxxx Xxxx PLLC as the Representative, with full power of substitution and re-substitution, and in such capacity to serve as the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their Indemnitor’s agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of , and the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholdershereby accepts such appointment. The Representative will shall be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders Indemnitors to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent Purchaser relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions, other than in connection with Direct Securityholder Claims; (32) authorize deliveries to Parent Purchaser of cash or other property from the Escrow Funds Consideration Shares and legally bind each Indemnifying Securityholder Indemnitor to pay cash or Consideration Shares directly to Parent Purchaser in satisfaction of claims asserted by Parent Purchaser (on behalf of itself or any other Indemnified Person, including by not objecting to such claims), other than in connection with Direct Securityholder Claims; (43) object to such claims in accordance with Section 7.6 and Section 7.137.7 (Third Party Claims) other than in connection with Direct Securityholder Claims; (54) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims, other than in connection with Direct Securityholder Claims; (65) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance, other than in connection with Direct Securityholder Claims; (76) subject to Section 6.36.1 (Amendment), execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Indemnitor any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentagesinformation contained in the Preliminary Spreadsheet and/or Final Spreadsheet); and (7) subject to Section 6.2 (Extension; Waiver), (8) enter into execute for and on behalf of each Indemnitor any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow this Agreement. The Representative will shall be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Foundersabove, and no Indemnifying Securityholder or Indemnifying Founder will Indemnitor shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder Indemnitor or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder Indemnitor or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Indemnitor or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.
Appears in 1 contract
Samples: Purchase Agreement (Agenus Inc)
Representative. (a) At Effective upon and by virtue of the Effective TimeStockholder Approval, Xxxxx X. Xxxxxxxx will be constituted and without any further act of any of the Stockholders or Optionholders, the Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and attorney in fact (coupled with an interest) for all the Representative hereby accepts such appointment. Each Indemnifying Securityholder Stockholders and Indemnifying Founders, by virtue of its adoption of Optionholders for all purposes under this Agreement including the full power and authority on the Stockholders’ and Optionholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and approval the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Allocable Amount contemplated by Section 3.03 and claims for indemnification under Article XI), (iii) to receive and disburse to, or caused to be received or disbursed to, any Stockholder or Optionholder any funds received on behalf of such Stockholder or Optionholder under this Agreement (including, for the avoidance of doubt, any portion of the MergerMerger Consideration) or otherwise, will be deemed (iv) to have appointed and constituted withhold any amounts received on behalf of any Stockholder or Optionholder pursuant to this Agreement (including, for the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions avoidance of doubt, any portion of the Representative taken in accordance with this Section 7.16 shall be deemed Merger Consideration) or to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and satisfy (on behalf of the Indemnifying Securityholders Stockholders and Indemnifying Founders to Optionholders) any and all obligations or liabilities of any Stockholder, Optionholder or the Representative in the performance of any of their commitments hereunder (1) enter into including, for the Escrow Agreement; (2) give and receive notices and communications to or from Parent avoidance of doubt, the satisfaction of payment obligations (on behalf of itself or any other Indemnified Personthe Stockholders and Optionholders) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance adjustment of hisAllocable Amount contemplated by Section 3.03 or the indemnification of the Purchaser Indemnified Parties under Article XI), her (v) to execute and deliver any amendment or its duties waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Stockholder or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Representative Closing and (vii) to take all other actions to be taken by or on behalf of any Stockholder or Optionholder in connection with General Liability Claims will be borne this Agreement and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the “General consent of the Representative Expenses”)and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Stockholder and Optionholder. All reasonable expenses, if any, incurred decisions and actions by the Representative in connection with the performance of hisshall be binding upon each Stockholder and Optionholder, her and no Stockholder or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Optionholder shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodshall have no duties or obligations hereunder, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Lossesincluding any fiduciary duties, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholdersexcept those set forth herein, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses duties and obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will Shareholder Representative Services LLC shall be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying FoundersSecurityholder, by virtue of its adoption of this Agreement and approval of the Merger, will shall be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will shall be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; , (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds Fund and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 1.9 and Section 7.13Section 7.6; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; , and (7) subject to Section 6.3Section 6.4, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will shall be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Foundersabove, and no Indemnifying Securityholder or Indemnifying Founder will shall have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Securityholder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative. After the Closing, and the Representative will not receive any compensation for the Representative’s services. Notices notices or communications to or from the Representative will shall constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableSecurityholders.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nova Measuring Instruments LTD)
Representative. (a) At the Effective Time, Xxxxx Xxxx X. Xxxxxxxx III will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying FoundersSecurityholder, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the TransactionsTransactions (other than Letters of Transmittal, Non-competition agreements, Offer Letters and any other agreements respecting post-Closing services to Parent or any of its Subsidiaries (including the Surviving Entity and its Subsidiaries) (collectively, the “Excluded Agreements”), with respect to which the Representative has no authority); (3) authorize deliveries to Parent of cash or other property from the Escrow Funds Fund and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims)thereto; (4) object to such claims in accordance with Section 7.6 and Section 7.137.6; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.36.1, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentagesaddresses), other than any Excluded Agreement; (8) makes adjustments to the Escrow Release Percentages, the Redemption Consideration Percentages or the Representative Fund Release Percentages that the Representative determines in good faith are just and equitable to reflect an appropriate allocation of responsibility for matters for which amounts have been paid out of the Escrow Fund (and Redemption Consideration Offsets) or the Representative Fund (in whole or in party) but for which not all Indemnifying Securityholders are bearing or should bear equal responsibility or to otherwise effect the terms of this Agreement; (9) enter into any waiver or extension pursuant to Section 6.4 and 6.2; (910) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement; and (11) execute such further instruments of assignment as Parent shall reasonably request. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying FoundersSecurityholders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. All decisions and actions by the Representative (to the extent authorized by this Agreement) shall be binding upon all of the Indemnifying Securityholders, and no Indemnifying Securityholder shall have the right to object, dissent, protest or otherwise contest the same. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Securityholder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative (including in connection with General Liability Claims Claims) will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage respective Indemnification Percentages (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following resolution of the post-Closing Merger Consideration adjustment and following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties Persons for Losses, the Representative will have the right to recover General Representative Expenses from Adjustment Fund or the General Escrow Fund, if respectively, and only if no in its sole discretion to direct all or any portion of amounts are then remaining in the Representative Fund, prior otherwise to any distribution be released to the Indemnifying Securityholders, and prior to any such distribution, will deliver Securityholders into the Representative Fund by delivering to the Escrow Agent a certificate setting forth written instructions specifying the General Representative Expenses actually incurred with respect portion of such amounts to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable directed to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expensesFund. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or with respect to the matters covered hereby. The Representative shall be entitled to engage such counsel, experts, consultants and other advisors as it shall deem necessary in connection with exercising its powers and performing its functions hereunder and (in the absence of bad faith on the part of the Representative) shall be entitled to conclusively rely on the opinions and advice of such Persons. The Representative may (but need not) consult with any Indemnifying Founders, as applicableSecurityholder in connection with exercising its powers and performing its functions hereunder and each Indemnifying Securityholder shall cooperate with and offer reasonable assistance to the Representative in connection therewith.
Appears in 1 contract
Representative. (a) At The individual listed on Section 8.16 of the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and Disclosure Schedule is hereby appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions agent of the Representative taken Members (the “Representative”) to execute any and all instruments or other documents, and to do any and all other acts or things, in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for Members’ names and on behalf of their behalf, that the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to Representative may deem necessary or from Parent (on behalf of itself advisable, or any other Indemnified Person) and/or the Escrow Agent relating that may be required pursuant to this Agreement, the Escrow Agreement or any otherwise, in connection with the consummation of the other documents transactions contemplated by hereby. Without limiting the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment generality of the foregoing, the Representative shall have the full power and authority, in each case without having to seek or obtain the consent names of any Person under any circumstance; (7) subject to Section 6.3, execute for the Members and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreementtheir behalf, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto to: (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9i) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance agree with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf Parent with respect to any such matters, other than any claim matter or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder thing required or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred deemed necessary by the Representative in connection with the performance provisions of histhis Agreement calling for the agreement of the Members, her or its duties as give and receive notices on behalf of all Members, and act on behalf of the Representative Members in connection with General Liability Claims will any matter as to which the Members are or may be borne obligated to indemnify Parent under this Agreement, all in the absolute discretion of the Representative; (ii) interpret the terms and paid by provisions of this Agreement; (iii) dispute or fail to dispute any Losses claimed hereunder and to negotiate and compromise any dispute which may arise under this Agreement and to sign any releases or other documents with respect to any such dispute, including the Indemnifying Securityholders according interpretation of, disputing or failing to their Aggregate Escrow Funding Percentage dispute the composition or amount of Cash, Debt, Closing Working Capital, Transaction Expenses or any item on the Closing Statement and negotiating and signing any release in respect of any dispute that may arise under Section 2.10; (the “General Representative Expenses”). All reasonable expensesiv) execute and deliver all ancillary agreements, if anycertificates, incurred by the Representative statements, notices, approvals, extensions, waivers, undertakings, amendments and other documents required or permitted to be given in connection with the performance consummation of histhe transactions contemplated by this Agreement; (v) receive funds and give receipt for funds, her including in respect of the Initial Merger Consideration, and any adjustment thereto, and to distribute to the Members the Per Unit Merger Consideration to which they are entitled; (vi) take all action necessary or its duties as the Representative desirable in connection with Litigation Liability Claims will be borne the waiver of any condition to the obligations of Members to consummate the transactions contemplated by this Agreement; and paid (vii) in general, do all things and perform all acts, including, without limitation, executing and delivering all agreements, certificates, receipts, consents, elections, instructions, and other instruments or documents contemplated by, or deemed by the Indemnifying Founders according Representative to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodbe necessary or advisable in connection with, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own 76 behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.. (b) The Person serving as the Representative may be replaced from time to time by the holders of a majority in interest of the cash then on deposit in the General Escrow Fund upon not less than ten days’ prior written notice to Parent. The agency of the Representative may be changed only when the Person serving as the Representative is replaced pursuant to the preceding sentence. A vacancy in the position of Representative may be filled by the holders of a majority in interest of the cash then on deposit in the General Escrow Fund. If 77 the Representative refuses or is no longer capable of serving as the Representative hereunder, then the Indemnifying Securityholders will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder, and the Representative will serve until such successor is duly appointed and qualified to act hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Indemnifying Securityholders or Indemnifying Founders, as applicable, at their addresses last known to Parent. (c) The Representative will not be liable to any Indemnifying Securityholder or Indemnifying Founder for any act done or omitted in connection with the Representative’s services under this Agreement or the Escrow Agreement while acting in good faith and any act done or omitted in accordance with the advice of counsel or other expert will be conclusive evidence of such good faith. The Indemnifying Securityholders and Indemnifying Founders, as applicable, will severally, but not jointly (based on their respective Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage, as applicable, compared to the total Aggregate Escrow Funding Percentage or Unit Litigation Funding Percentage of all of the Indemnifying Securityholders or Indemnifying Founders, respectively), indemnify the Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including the reasonable fees and expenses of counsel and experts and their staffs and all reasonable expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Representative’s execution and performance of this Agreement and the Escrow Agreement, in each case in such person’s capacity as the Representative only, and as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss or any portion of a Representative Loss is finally adjudicated to have been directly caused by the gross negligence or bad faith of the Representative, the Representative will promptly reimburse the Indemnifying Securityholders or the Indemnifying Founders, as applicable, the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or bad faith. With respect to General Liability Claims, if not paid directly to the Representative by the Indemnifying Securityholders, any such Representative Losses may be recovered by the Representative from (i) the funds in the Representative Fund and (ii) the amounts in the General Escrow Fund at such time as remaining amounts in the General Escrow Fund would otherwise be distributable to the Indemnifying Securityholders. With respect to Litigation Liability Claims, if not paid directly to the Representative by the Indemnifying Founders, any such Representative Losses may be recovered by the Representative from the amounts in the Litigation Escrow Fund at such time as remaining amounts in the Litigation Escrow Fund would otherwise be distributable to the Indemnifying Founders. Notwithstanding the foregoing, while this section allows the Representative to be paid from the Representative Fund and the Escrow Funds, this does not relieve the Indemnifying Securityholders or Indemnifying Founders, as applicable, from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Representative from seeking any remedies available to it at law or otherwise. In no event will the Representative be required to advance its own funds on behalf of the Indemnifying Securityholders, Indemnifying Founders or otherwise. The Indemnifying Securityholders and Indemnifying Founders acknowledge and agree that the foregoing indemnities will survive the resignation or removal of the Representative or the termination of this Agreement. 78 (d) The Representative will have reasonable access to information about the Surviving Entity and its then current officers and employees, as well as the reasonable assistance of the Company’s former officers and employees for purposes of performing its duties and exercising its rights hereunder; provided that the Representative will treat confidentially and not use or disclose the terms of this Agreement or any nonpublic information from or about Parent, Surviving Entity, or any Indemnified Person to anyone (except to the Indemnifying Securityholders, Indemnifying Founders or the Representative’s employees, attorneys, accountants, financial advisors or authorized representatives on a need to know basis, in each case who agree to treat such information confidentially), provided, however, that neither Parent nor the Surviving Entity will be obligated to provide such access or information if it determines, in its reasonable judgment, that doing so would violate applicable Law or any Contract to which Parent, the Surviving Entity or any of their Affiliates is a party or obligation of confidentiality owed by Parent, the Surviving Entity or any of their Affiliates to a third party, jeopardize the protection of attorney-client privilege or any rights of Parent or any Indemnified Person under the work-product doctrine or expose Parent or the Surviving Entity to risk of liability for disclosure of sensitive or personally identifiable information. The Representative will enter into a separate confidentiality agreement prior to being provided access to such information if requested by Parent. Notwithstanding anything in this Agreement to the contrary, any pre-Closing attorney-client privileged communications of the Company and its Subsidiaries that summarize, describe or refer to the Transactions or to negotiations relating to the Transactions (including all emails, correspondence, invoices, recordings and other documents or files, evidencing or reflecting communications between the Company, its Subsidiaries and their respective counsel, and all files maintained by the Company’s or any of its Subsidiaries’ law firm or legal counsel ) (the “Communications”) will not become attorney-client privileged communications of the Surviving Entity, but will instead become attorney-client privileged Communications of the Representative; provided, however, that in the case of any good faith allegation of fraud perpetrated by the Company or its representatives in connection with the Transactions or negotiations relating to the Transactions, the Representative hereby agrees to waive the attorney client privilege with respect to any attorney client communications received or sent by any of Xxxx Xxxxxxxx, Xxxx Xxxxxxxx, XX Xxxxxxxx, Xxx Xxxxxx, Xxxxx Xxxxxxxxxxx, or Xxxxx Xxxxxxxx that would reflect Knowledge of the Company or information Known to the Company relating to such allegation. The Representative will cause all Communications stored on the Company’s servers prior to the Closing to be preserved. (e) The Representative shall (i) reasonably inform each Indemnifying Securityholder of all material actions taken in its capacity as the Representative with respect to all material matters arising under or with respect to this Agreement, (ii) not take any action in its capacity as the Representative that materially adversely affects the rights or obligations of any Indemnifying Securityholder in any manner materially different from the other Indemnifying Securityholders without the prior written consent of such Indemnifying Securityholder, and (iii) shall not take any action in its capacity as the Representative (to the extent the Representative has any authority to do so) to amend, waive or otherwise modify any provision of the Joinder Agreement with the Insight Unitholders and Accel Unitholders, the last sentence of Section 1.5(a) or Section 1.4(h) without the prior written consent of the Indemnifying Securityholder(s) party thereto or effected thereby, as the case may be. 79 (f) By its signature to this Agreement, the initial Representative hereby accepts the appointment contained in this Agreement, as confirmed and extended by this Agreement, and agrees to act as the Representative and to discharge the duties and responsibilities of the Representative pursuant to the terms of this Agreement. Section 7.17
Appears in 1 contract
Samples: Agreement and Plan of Merger
Representative. (a) At In addition to the Effective Time, Xxxxx X. Xxxxxxxx will be constituted other rights and appointed as the Representative, and authority granted to the Representative hereby accepts such appointment. Each Indemnifying Securityholder elsewhere in this Agreement, upon and Indemnifying Founders, by virtue of its adoption of this Agreement and the approval of the Mergerrequisite Company Stockholders of this Agreement, will be deemed and pursuant to have appointed each Letter of Transmittal, all of the Company Stockholders collectively and constituted irrevocably constitute and appoint the Representative as their agent and true representative to act, provided however that the Representative shall have no obligation to the Company Stockholders to act other than as expressly provided herein, from and lawful attorney-in-fact with after the powers date hereof and authority as set forth in to do any and all things and execute any and all documents that may be necessary, convenient or appropriate to facilitate the consummation of the transactions contemplated by this Agreement. All such actions , including: (i) execution of the Representative taken in accordance with documents and certificates pursuant to this Section 7.16 shall be deemed Agreement; (ii) receipt of payments under or pursuant to be facts ascertainable outside this Agreement and disbursement thereof, as contemplated by this Agreement; (iii) payment of amounts due to the merger agreement Parent pursuant to this Agreement; (iv) receipt and shall be binding on forwarding of notices and communications pursuant to this Agreement; (v) administration of the Indemnifying Securityholders. The Representative will be the exclusive agent for and provisions of this Agreement; (vi) giving or agreeing to, on behalf of all or any of the Indemnifying Securityholders Company Stockholders, any and Indemnifying Founders all consents, waivers, amendments or modifications deemed by the Representative, in its sole and absolute discretion, to (1) enter into be necessary or appropriate under this Agreement and the Escrow Agreementexecution or delivery of any documents that may be necessary or appropriate in connection therewith; (2vii) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to amending this Agreement, the Escrow Agreement or any of the other documents contemplated by instruments to be delivered to the TransactionsParent pursuant to this Agreement; (3viii) authorize deliveries to Parent of cash (A) disputing or other property refraining from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Persondisputing, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Company Stockholder relative to any amendment amounts to be received by such Company Stockholder under this Agreement, the Escrow Agreement or any exhibitagreements contemplated hereby, annex any claim made by the Parent under this Agreement or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages)other agreements contemplated hereby, (8) enter into B) negotiating and compromising, on behalf of each such Company Stockholder, any waiver dispute that may arise under, and exercising or extension pursuant to Section 6.4 refraining from exercising any remedies available under, this Agreement or any other agreement contemplated hereby and (9C) cause executing, on behalf of each such Company Stockholder, any settlement agreement, release or other document with respect to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting such dispute or addressing any of the above remedy; (ix) engaging attorneys, accountants, agents or consultants on behalf of the Indemnifying Securityholders Company Stockholders in connection with this Agreement or any other agreement contemplated hereby and Indemnifying Founderspaying any fees related thereto; and (x) if any Company Stockholder as of the Closing is not an accredited investor, serving as “purchaser representative” for such Company Stockholder as such term is defined in Rule 501 of Regulation D. Any such actions taken, exercises of rights, power or authority, and any decision or determination made by the Representative consistent herewith, shall be absolutely and irrevocably binding on each Company Stockholder as if such Company Stockholder personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Company Stockholder’s individual capacity, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Company Stockholder shall have the right to recover General Representative Expenses from object, dissent, protest or otherwise contest the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablesame.
Appears in 1 contract
Representative. (a) At Effective upon and by virtue of the Effective TimeMember Approval, Xxxxx X. Xxxxxxxx will be constituted and without any further act of any of the Members or Optionholders, the Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and attorney in fact (coupled with an interest) for all the Representative hereby accepts such appointment. Each Indemnifying Securityholder Members and Indemnifying FoundersOptionholders for all purposes under this Agreement including the full power and authority on the Members’ and Optionholders’ behalf, by virtue subject to the terms and conditions of its adoption of this Agreement: (i) to consummate the transactions contemplated under this Agreement and approval the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.03), (iii) to receive and disburse to, or caused to be received or disbursed to, any Member or Optionholder any funds received on behalf of such Member or Optionholder under this Agreement (including, for the avoidance of doubt, any portion of the MergerMerger Consideration) or otherwise, will be deemed (iv) to have appointed and constituted withhold any amounts received on behalf of any Member or Optionholder pursuant to this Agreement (including, for the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions avoidance of doubt, any portion of the Representative taken in accordance with this Section 7.16 shall be deemed Merger Consideration) or to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and satisfy (on behalf of the Indemnifying Securityholders Members and Indemnifying Founders to Optionholders) any and all obligations or liabilities of any Member, Optionholder or the Representative in the performance of any of their commitments hereunder (1) enter into including, for the Escrow Agreement; (2) give and receive notices and communications to or from Parent avoidance of doubt, the satisfaction of payment obligations (on behalf of itself or any other Indemnified Personthe Members and Optionholders) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance adjustment of hisClosing Cash Proceeds contemplated by Section 3.03), her (v) to execute and deliver any amendment or its duties waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of any Member or Optionholder), (vi) to receive and disburse to, or cause to be received or disbursed to, any individual pursuant to any incentive compensation agreement providing for a transaction bonus, in effect as of the Representative Closing and (vii) to take all other actions to be taken by or on behalf of any Member or Optionholder in connection with General Liability Claims will be borne this Agreement and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the “General consent of the Representative Expenses”)and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Member and Optionholder. All reasonable expenses, if any, incurred decisions and actions by the Representative in connection with the performance of hisshall be binding upon each Member and Optionholder, her and no Member or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Optionholder shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodshall have no duties or obligations hereunder, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Lossesincluding any fiduciary duties, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholdersexcept those set forth herein, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses duties and obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and 9.2.1 Appointment. Representative Services LLC is hereby appointed as the Representative, to represent the AirPatrol Shareholders in connection with any and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption all claims for indemnification that Acquiror or any other Indemnified Person may have against any AirPatrol Shareholder under Article 7 of this Agreement Agreement, any potential adjustment to the Merger Consideration and approval any matter related to amount or payment of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying SecurityholdersEarnout Payment. The Representative will be the exclusive agent for shall have full power and on behalf of the Indemnifying Securityholders and Indemnifying Founders authority to (1) enter into the Escrow Agreement; (2i) give and receive notices and communications to or from Parent Acquiror (on behalf of itself or any other Indemnified PersonParty) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the Contemplated Transactions and other documents matters contemplated by the Transactionshereby or thereby; (3ii) authorize deliveries release (including by means of not objecting to Parent claims) to Acquiror of cash or other property Holdback Shares from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims)Account; (4iii) object to such any claims in accordance with Section 7.6 and pursuant to Section 7.13; (5iv) consent or agree to, negotiate, enter into settlements and compromises of, and demand agree to arbitration and comply with Orders orders of courts and awards of arbitrators with respect to, such claims; (6v) assert, negotiate, enter into settlements and compromises of, and agree to arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Indemnified Party, against any such AirPatrol Shareholders or by any such AirPatrol Shareholders against any Indemnified Party or any dispute between any Indemnified Party and any such AirPatrol Shareholders, in each case relating to this Agreement, the Escrow Agreement or the transactions contemplated hereby or thereby; (vi) make all decisions and actions relating to any adjustment to the Merger Consideration or the amount or payment of the Earnout Payment, (vii) amend this Agreement, the Escrow Agreement or any other related agreement or any other agreement referred to herein or contemplated hereby; (vii) take any and all actions and do any and all things which this Agreement specifies that the Representative can or shall do; and (viii) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties Person serving as the Representative in connection with General Liability Claims will may resign at any time, and may be borne and paid replaced from time to time by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination AirPatrol Shareholders holding a majority of the General Escrow Claim Period, the resolution voting capital stock of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, AirPatrol immediately prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does Effective Time of Merger I upon not give their less than ten days’ prior written consent notice to such reimbursement. Following the termination of the Litigation Escrow Claim PeriodAcquiror and with Acquiror’s written consent, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losseswhich shall not be unreasonably withheld, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expensesconditioned or delayed. No bond will shall be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will after the Closing shall constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableAirPatrol Shareholders. The Representative accepts its appointment hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sysorex Global Holdings Corp.)
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying FoundersMr. Xxxx xxxll, by virtue of its adoption of this Agreement the Merger and approval of the Mergerresolutions to be adopted by the Shareholders, will be deemed to have irrevocably appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed authorized and empowered to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent act, for and on behalf of any or all of the Indemnifying Securityholders and Indemnifying Founders Shareholders (with full power of substitution in the premises) in connection with the indemnity provisions of Article 11 as they relate to (1) enter into the Shareholders generally, the Escrow Agreement; , the notice provision of this Agreement, and such other matters as are reasonably necessary for the consummation of the Transactions including, without limitation, to act as the representative of such Shareholders to review and authorize all set-offs, claims and other payments authorized or directed by the -------------------------------------------------------------------------------- * Portions of this Exhibit have been deleted and filed separately with the Securities and Exchange Commission pursuant to the Company's request for confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act. Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with Jabil any claims asserted thereunder and to authorize payments to be made with respect thereto and to take such further actions as are authorized in this Agreement (2) give the above named representative, as well as any subsequent representative of such Shareholders appointed by him or, after his death or incapacity, elected by vote of holders of a majority of the Jabil Shares received by such Shareholders pursuant to the Merger, being referred to herein as the "Representative"). The Representative shall not be liable, in his capacity as representative of such Shareholders, to any of the Shareholders and receive notices and communications to or from Parent (on behalf of itself their respective affiliates or any other Indemnified Person) and/or person with respect to any action taken or omitted to be taken by the Escrow Agent relating to Representative under or in connection with this Agreement, Agreement or the Escrow Agreement in his capacity as representative of such Shareholders unless such action or any omission results from or arises out of fraud, gross negligence, willful misconduct or bad faith on the part of the other documents contemplated Representative. Jabil and the Surviving Corporation and each of their respective affiliates shall be entitled to rely on such appointment and treat such Representative as the duly appointed attorney-in-fact of each Shareholder. Each Shareholder who votes in favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and each Shareholder who receives any Jabil Shares in connection with the Transactions; (3) authorize deliveries Merger, by acceptance thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of Jabil to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoingthis Agreement is based, in each case without having part, on the appointment of a representative to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above act on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableShareholders.
Appears in 1 contract
Representative. (a) At the Effective TimeClosing, Xxxxx X. Xxxxxxxx will Shareholder Representative Services LLC shall be constituted and appointed as the representative of the Rights Holders (the “Representative”), and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying FoundersRights Holder, by virtue of its adoption of this Agreement execution and approval delivery of the MergerStockholder Consent and/or a Joinder Agreement, will and/or the surrender of Certificates, Vested Options and/or Warrants in exchange for the applicable portion of the Aggregate Merger Consideration pursuant to this Agreement, as applicable, or by virtue of the conversion of its shares into the right to receive the applicable portion of the Aggregate Merger Consideration as a result of the Merger shall be deemed to have appointed and constituted the Representative as their its agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions , with full power of the Representative taken in accordance with this Section 7.16 substitution and shall be deemed to be facts ascertainable outside the merger agreement coupled with an interest and shall be binding on survive the Indemnifying Securityholdersdeath or incapacity of such Rights Holder. The Representative will shall be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders Rights Holders to (1) enter into the Escrow Agreement; (2i) give and receive notices and communications to or from Parent Buyer or the Escrow Agent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by Merger, including the TransactionsEarn-Out Payments; (3ii) authorize deliveries to Parent of cash or other property from the Escrow Funds any Indemnified Losses and legally bind each Indemnifying Securityholder Rights Holder to pay cash directly to Parent Buyer in satisfaction of claims asserted by Parent Buyer (on behalf of itself or any other Indemnified PersonParty, including by not objecting to such claims); (4iii) object to such claims in accordance with Section 7.6 and Section 7.134.4(f); (5iv) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders orders with respect to, such claims; (6v) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7vi) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder Rights Holder any amendment to this Agreement, the Escrow Agreement Agreement, or any exhibit, certificate, waiver, annex or schedule hereto or thereto (including for the purpose or any termination of amending addresses or sharing percentages), (8) enter into any waiver or extension this Agreement pursuant to Section 6.4 7.1; and (9vii) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of enter into the Escrow Agreement. The Representative will shall be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Foundersabove, and no Indemnifying Securityholder or Indemnifying Founder will Rights Holder shall have any right to act on its own behalf with respect to any such matters, other than with respect to any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder Rights Holder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder Rights Holder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder Rights Holder or the Representative will have received any notice thereof. If the Representative resigns, refuses or is no longer capable of serving as the Representative hereunder, then the Rights Holders will promptly appoint a successor Representative who will thereafter be a successor Representative hereunder; provided that, in the case of resignation or refusal, except in the event that Representative is required by Applicable Law or an Order, or is otherwise incapable of serving, the Representative will serve until such successor is duly appointed and qualified to act hereunder. If there is not a Representative at any time, any obligation to provide notice to the Representative will be deemed satisfied if such notice is delivered to each of the Rights Holders at their addresses last known to Buyer. All reasonable and documented expenses, if any, incurred by the 56 Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expensesRights Holders. No bond will be required of the Representative, and the Representative will not receive any compensation for its services other than pursuant to that certain engagement letter to be entered by and among the Representative’s services, NMI and certain Rights Holders. Notices or communications to or from the Representative will shall constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableRights Holders.
Appears in 1 contract
Representative. (a) At By the Effective Time, Xxxxx X. Xxxxxxxx will be constituted approval of this Agreement pursuant to Delaware Law (or otherwise) and appointed as the Representative, effective upon and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption the Stockholder Approval, and without any further act of this Agreement and approval any of the MergerStockholders, will be deemed and by execution of Option Cancellation Agreements by each of the Optionholders with respect to have appointed each such Optionholder, the Stockholders and constituted Optionholders hereby irrevocably appoint the Representative as their agent the representative, agent, proxy, and true and lawful attorney-in-fact with for all the powers Stockholders and Optionholders for all purposes under this Agreement including the full power and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be Stockholders’ and Optionholders’ behalf: (i) to consummate the exclusive agent for transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Stockholders and Optionholders (subject to Section 13.13(f) below) any funds received on behalf of the Indemnifying Securityholders Stockholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to Optionholders under this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages)otherwise, (8) enter into iv) to withhold any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above amounts received on behalf of the Indemnifying Securityholders Stockholders and Indemnifying FoundersOptionholders pursuant to this Agreement or otherwise to satisfy any and all obligations or liabilities incurred by the Stockholders, Optionholders or the Representative in the performance of their duties hereunder, (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Stockholders or Optionholders) and (vi) to take all other actions to be taken by or on behalf of the Stockholders and Optionholders in connection with this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The Stockholders and Optionholders, by approving this Agreement, further agree that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder or Optionholder. All decisions and actions by the Representative shall be binding upon all of the Stockholders and Optionholders, and no Indemnifying Securityholder Stockholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Optionholder shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodshall have no duties or obligations hereunder, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Lossesincluding any fiduciary duties, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholdersexcept those set forth herein, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses duties and obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Park Ohio Holdings Corp)
Representative. (a) At The Stockholders have irrevocably appointed the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed Representative as the Representativerepresentative, agent, proxy, and attorney in fact for all the Representative hereby accepts such appointment. Each Indemnifying Securityholder Stockholders for all purposes under this Agreement including the full power and Indemnifying Founders, by virtue of its adoption of authority to act on the Stockholders’ behalf: (i) to consummate the transactions contemplated under this Agreement and approval of the Mergerother agreements, will be deemed instruments, and documents contemplated hereby or executed in connection herewith (including pursuant to have appointed Section 4.2); (ii) to negotiate disputes arising under, or relating to, this Agreement and constituted the Representative as their agent other agreements, instruments, and true documents contemplated hereby or executed in connection herewith (including pursuant to Section 4.2); (iii) to receive and lawful attorney-in-fact with disburse to the powers and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and Stockholders any funds received on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow AgreementStockholders under this Agreement or otherwise; (2iv) give and receive notices and communications to or from Parent (on behalf of itself or withhold any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above amounts received on behalf of the Indemnifying Securityholders Stockholders to this Agreement or otherwise to satisfy any and Indemnifying Foundersall obligations or liabilities incurred by the Stockholders or the Representative in the performance of their duties hereunder; (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Stockholders); and (vi) to take all other actions to be taken by or on behalf of the Stockholders in connection with this Agreement (including pursuant to Section 3.4) and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith. The agency and proxy granted by the Stockholders are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Stockholder. All decisions and actions by the Representative shall be binding upon all of the Stockholders, and no Indemnifying Securityholder or Indemnifying Founder will Stockholder shall have any the right to act on its own behalf with respect to object, dissent, protest or otherwise contest the same. The Representative shall have no duties or obligations hereunder, including any fiduciary duties, except those set forth herein, and such matters, other than any claim or dispute against duties and obligations shall be determined solely by the Representativeexpress provisions of this Agreement. This appointment of agency and this The power of attorney granted by each Stockholder to the Representative is coupled with an interest and will be is irrevocable and will shall not terminate or otherwise be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether affected by the death death, disability, incompetence, bankruptcy or incapacity insolvency of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableStockholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Michael Foods Inc/New)
Representative. (a) At the Effective TimeBy executing this Agreement, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval each of the Merger, will Members shall be deemed to have irrevocably constituted and appointed [INSIGHT ENTITY] (in the capacity described in this Section 7.18 and constituted each successor as provided below, the Representative “Representative”) as their his, her or its agent and true and lawful attorney-in-attorney in fact with full power of substitution to act from and after the powers date hereof and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement do any and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for all things and execute any and all documents on behalf of such Members which may be necessary, convenient or appropriate to facilitate any matters under this Agreement, including but not limited to: (i) execution of the Indemnifying Securityholders documents and Indemnifying Founders certificates required pursuant to (1) enter into the Escrow this Agreement; (2ii) give except to the extent specifically provided in this Agreement receipt and receive forwarding of notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating pursuant to this Agreement; (iv) administration of the provisions of this Agreement; (v) any and all consents, waivers, amendments or modifications deemed by the Escrow Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement or any of the other documents contemplated by instruments to be delivered to the TransactionsCorporation pursuant to this Agreement; (3vii) authorize deliveries taking actions Representative is expressly authorized to Parent take pursuant to the other provisions of cash or other property from the Escrow Funds this Agreement; (viii) negotiating and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (compromising, on behalf of itself such Members, any dispute that may arise under, and exercising or refraining from exercising any remedies available under, this Agreement or any other Indemnified Personagreement contemplated hereby and executing, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder such Members, any settlement agreement, release or other document with respect to such dispute or remedy; and Indemnifying Founder any amendment to (ix) engaging attorneys, accountants, agents or consultants on behalf of such Members in connection with this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into other agreement contemplated hereby and paying any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreementfees related thereto. The Representative will be may resign upon [[__] days’] written notice to the sole and exclusive means of asserting Corporation. If the Representative is unable or addressing any unwilling to so serve, then the Members, as applicable, holding a majority of the above common units owned by such Members outstanding on behalf of the Indemnifying Securityholders and Indemnifying Foundersdate hereof, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the shall elect a new Representative. This appointment of agency All reasonable, documented out-of-pocket costs and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, expenses incurred by the Representative in connection with the performance of his, her or its duties capacity as the Representative in connection with General Liability Claims will such shall be borne and paid promptly reimbursed by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All Corporation upon invoice and reasonable expenses, if any, incurred support therefor by the Representative in connection with Representative. To the performance of hisfullest extent permitted by law, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required none of the Representative, and the Representative will not receive any compensation for of its Affiliates, or any of the Representative’s services. Notices or communications Affiliate’s directors, officers, employees or other agents (each a “Covered Person”) shall be liable, responsible or accountable in damages or otherwise to any Member, the LLC or the Corporation for damages arising from any action taken or omitted to be taken by the Representative will constitute notice or any other Person with respect to the LLC or from each the Corporation, except in the case of any action or omission which constitutes, with respect to such Person, willful misconduct or fraud. Each of the Indemnifying Securityholders Covered Persons may consult with legal counsel, accountants, and other experts selected by it, and any act or Indemnifying Foundersomission suffered or taken by it on behalf of the LLC or the Corporation or in furtherance of the interests of the LLC or the Corporation in good faith in reliance upon and in accordance with the advice of such counsel, as applicableaccountants, or other experts shall create a rebuttable presumption of the good faith and due care of such Covered Person with respect to such act or omission; provided that such counsel, accountants, or other experts were selected with reasonable care. Each of the Covered Persons may rely in good faith upon, and shall have no liability to the LLC, the Corporation or the Members for acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties.
Appears in 1 contract
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and The Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with for all the powers Company Securityholders for all purposes under this Agreement including the full power and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Company Securityholders. The Representative will be ’ behalf: (i) to consummate the exclusive agent for transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Company Securityholders any funds received on behalf of the Indemnifying Company Securityholders and Indemnifying Founders under this Agreement or otherwise, (iv) to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (withhold any amounts received on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating Company Securityholders pursuant to this Agreement, including the Representative Holdback Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Company Securityholders or the Representative in the performance of their duties hereunder, (v) to direct the distribution of funds, designate or engage a paying agent to distribute funds (including, the Closing Date Cash Merger Consideration, the Adjustment Amount payable in accordance with Section 3.6 (Post-Closing Merger Consideration Adjustment and Payments), the determination and distribution of the Performance Transaction Bonus payable as provided for herein, and funds from the Escrow Agreement Account and the Representative Holdback Amount), make or any direct payments of funds from the other documents contemplated by the Transactions; (3) Representative Holdback Amount, give receipts for funds, authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent Account in satisfaction of claims asserted by Parent Parent, and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (without the prior approval of the Company Securityholders) and (vii) to take all other actions to be taken by or on behalf of itself or any the Company Securityholders in connection with this Agreement and the other Indemnified Personagreements, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises ofinstruments, and demand arbitration documents contemplated hereby or executed in connection herewith. The Company Securityholders, by approving this Agreement (whether by vote or by execution of a Letter of Transmittal), further agree that such agency and comply proxy are coupled with Orders with respect toan interest, such claims; (6) take all actions necessary or appropriate in are therefore irrevocable without the judgment consent of the Representative for and shall survive the accomplishment death, incapacity, bankruptcy, dissolution or liquidation of any Company Securityholder. All decisions and actions by the Representative shall be binding upon all of the foregoingCompany Securityholders and no Company Securityholder shall have the right to object, dissent, protest or otherwise contest the same. If an allocation is not otherwise provided for in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid Representative shall distribute funds to the Indemnifying Company Securityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, without independent verification or investigation, upon any balance such decision or action of the Representative Fund Amount as being the binding decision or action of every Company Securityholder, and Parent shall not used be liable to any Company Securityholder or any other Persons for any actions taken or omitted from being taken by them or by Parent in accordance with the terms or reliance upon any such decision or action of the Escrow AgreementRepresentative. The Representative will be the sole shall act by a majority in interest of Oak Hill Capital Partners III, L.P. and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying FoundersOak Hill Capital Management Partners III, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). L.P. The Representative will shall have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution duties or obligations to the Indemnifying SecurityholdersCompany Securityholders hereunder, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting except as expressly set forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hillman Companies Inc)
Representative. (a) At the Effective TimeClosing, Xxxxx X. Xxxxxxxx will Silver Knot, LLC shall be constituted and appointed as the Representative. For purposes of this Agreement, the term “Representative” shall mean the representative, true and the Representative hereby accepts such appointment. Each Indemnifying Securityholder lawful agent, proxy and Indemnifying Founders, by virtue attorney in fact of its adoption Parent for all purposes of this Agreement and approval the Escrow Agreement, with full power and authority on Parent’s behalf (i) to consummate the transactions contemplated herein, (ii) to pay Parent’s expenses (whether incurred on or after the date hereof) incurred in connection with the negotiation and performance of this Agreement, (iii) to receive, give receipt and disburse any funds received hereunder on behalf of or to Parent and to holdback from disbursement any such funds to the Mergerextent it reasonably determines may be necessary, will (iv) to execute and deliver any certificates representing the Units and execution of such further instruments as Buyer shall reasonably request, (v) to execute and deliver on behalf of Parent all documents contemplated herein and any amendment or waiver hereto, (vi) to take all other actions to be deemed taken by or on behalf of Parent in connection herewith, (vii) to have appointed negotiate, settle, compromise and constituted otherwise handle all disputes under this Agreement, including without limitation, disputes regarding any adjustment pursuant to Section 2.4, (viii) to waive any condition to the Representative as their agent obligation of Parent to consummate the transactions contemplated herein, (ix) to give and true receive notices on behalf of Parent and lawful (x) to do each and every act and exercise any and all rights which Parent is permitted or required to do or exercise under this Agreement. Parent, by executing this Agreement, irrevocably grants unto said attorney-in-fact with the powers and agent full power and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to do and perform each and every act and thing necessary or desirable to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative done in connection with the performance transactions contemplated by this Agreement, as fully to all intents and purposes as Parent might or could do itself. Parent agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by shall survive the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expensesliquidation, if any, incurred by the Representative in connection with the performance winding up and dissolution of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicableParent.
Appears in 1 contract
Representative. (a) At Effective upon execution of this Agreement, and without any further act of any of the Effective TimeBlocker Sellers or the equityholders of the Company, Xxxxx X. Xxxxxxxx will be constituted and the Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and attorney in fact (coupled with an interest) for the Representative hereby accepts Blocker Sellers and all of the equityholders of the Company (other than the Blockers) for all purposes under this Agreement including the full power and authority on such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of Persons’ behalf: (i) to consummate the transactions contemplated under this Agreement and approval the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate claims and disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (including, for the avoidance of doubt, the adjustment of Closing Cash Proceeds contemplated by Section 3.05), (iii) to receive and disburse to, or cause to be received or disbursed to, the Blocker Sellers or any equityholder of the MergerCompany (other than the Blockers) any funds received on behalf of such Person under this Agreement (including, will be deemed to have appointed and constituted for the Representative as their agent and true and lawful attorney-in-fact with the powers and authority as set forth in this Agreement. All such actions avoidance of doubt, any portion of the Representative taken in accordance with this Section 7.16 shall be deemed Merger Consideration) or otherwise, (iv) to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and withhold any amounts received on behalf of the Indemnifying Securityholders Blocker Sellers or any equityholder of the Company (other than the Blockers) pursuant to this Agreement (including, for the avoidance of doubt, any portion of the Merger Consideration) or to satisfy any and Indemnifying Founders all obligations or liabilities of the Blocker Sellers or any equityholder of the Company (other than the Blockers) or the Representative in the performance of any of their commitments hereunder (including, for the avoidance of doubt, the satisfaction of payment obligations in connection with the adjustment of Closing Cash Proceeds contemplated by Section 3.05), (v) to execute and deliver any amendment or waiver to this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith (1without the prior approval of the Blocker Sellers or any equityholder of the Company), (vi) enter into the Escrow Agreement; (2) give to receive and receive notices and communications disburse to, or cause to be received or from Parent (disbursed to, any individual any funds received on behalf of itself or such individual pursuant to any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any incentive compensation agreement providing for a transaction bonus in effect as of the other documents contemplated by the Transactions; Closing and (3vii) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all other actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting taken by or addressing any of the above on behalf of the Indemnifying Securityholders Blocker Sellers or any equityholder of the Company (other than the Blockers) in connection with this Agreement and Indemnifying Foundersthe other agreements, instruments, and documents contemplated hereby or executed in connection herewith. Such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of each Blocker Seller and each equityholder of the Company. All decisions and actions by the Representative shall be binding upon each Blocker Seller and each equityholder of the Company (other than the Blockers), and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Person shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Periodshall have no duties or obligations hereunder, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Lossesincluding any fiduciary duties, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholdersexcept those set forth herein, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses duties and obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (Roper Technologies Inc)
Representative. (a) At By the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and appointed as the Representative, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption approval of this Agreement pursuant to Delaware Law, the Sellers hereby irrevocably constitute and approval of the Merger, will be deemed to have appointed and constituted appoint the Representative as their agent the representative, agent, proxy, and true and lawful attorney-in-fact for each of the Sellers for all purposes authorized under this Agreement, including the full power and authority on the Sellers’ behalf: (i) to consummate the transactions contemplated under this Agreement, including the execution and delivery of this Agreement, the Purchase Price Adjustment Escrow Agreement, the Indemnity Escrow Agreement, the Rollover Agreements and the other instruments and documents contemplated hereby and thereby (collectively with the powers Letter of Transmittal, the “Transaction Documents”), (ii) to receive and authority as set forth forward notices and communications pursuant to this Agreement; (iii) subject to Section 12.08, to execute and deliver any amendment or waiver to the Transaction Documents (without the prior approval of the Sellers), (iv) (A) to dispute or refrain from disputing, on behalf of each Seller relative to any amounts to be received by such Seller under this Agreement or any agreements contemplated hereby, any claim made by the Purchaser under this Agreement or other agreements contemplated hereby, (B) to negotiate and compromise, on behalf of each such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, the Transaction Documents, and (C) to execute, on behalf of each such Seller, any settlement agreement, release or other document with respect to such dispute or remedy; except in each case with respect to a dispute between a Seller on the one hand and the Representative (or any Affiliate of the Representative) on the other hand, (v) following notice to and consultation with Teachers, to engage attorneys, accountants or consultants on behalf of such Sellers in connection with the Transaction Documents and paying any fees, costs and expenses related thereto (including by using funds from the Representative Holdback Amount), (vi) to retain the Representative Holdback Amount and pay amounts therefrom in accordance with this Agreement, and (vii) to take all other actions which may be necessary, convenient or appropriate to be taken on behalf of the Sellers in connection with the Transaction Documents; provided that, notwithstanding the foregoing or any other provision in this AgreementAgreement to the contrary, the Representative shall have no right, power or authority (1) to take any action otherwise permitted hereunder in connection with any Transaction Document unless Teachers will receive the same rights and benefits (including consideration and any fees) on a pro rata basis and have no more obligations in respect of its Company Stock or Investment Preferred Stock than any other Seller or (2) act on behalf of Teachers with respect to any right of Teachers specified in this Agreement or any other Transaction Document, including under Sections 12.01 (Press Release and Communications), 12.02 (Expenses), 12.03 (Notices), 12.04 (Assignment), 12.08 (Amendment and Waiver), 12.10 (Third-Party Beneficiaries), 12.15 (Representation of the Company and the Representative) and this Section 12.16. The Representative shall send a copy of all notices and written communications the Representative sends pursuant to Section 12.03 (Notices) of this Agreement or any other Transaction Documents simultaneously to Teachers. In addition, such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller. If any Seller dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Seller being a “Former Seller”) and, as a result, the agency and power of attorney conferred by this Section 12.16 is revoked by operation of law, it shall not be a breach by such Former Seller under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Seller (each a “Successor Seller”) confirms the appointment of the Representative as agent and attorney-in-fact for such Successor Seller. In addition, if the agency and power of attorney conferred by this Section 12.16 is revoked by operation of law and thereafter not reconfirmed by the Successor Seller prior to the Closing, such revocation shall not be deemed a breach by the Successor Seller of any of the provisions of this Agreement provided that the Shares held by such Successor Seller are delivered for transfer to Purchaser at the Closing duly endorsed for transfer or accompanied by stock powers duly endorsed for transfer, and further provided that such Successor Seller executes and delivers such other certificates, documents or instruments that would have been delivered on its behalf by the Representative had such Successor Seller reconfirmed the agency and power of attorney conferred by this Section 12.16. All such decisions and actions of by the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and Agreement shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf upon all of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications to or from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including for the purpose of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying FoundersSellers, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will Seller shall have the right to recover General object to, dissent from, protest or otherwise contest such decisions and actions. The Representative Expenses from the Representative Fund as shall have no duties or obligations hereunder except those forth herein and such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims duties and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses obligations shall be recovered from determined solely by the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination express provisions of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, and the Representative will not receive any compensation for the Representative’s services. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicablethis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hillman Companies Inc)
Representative. (a) At the Effective Time, Xxxxx X. Xxxxxxxx will be constituted and The Representative is hereby irrevocably appointed as the Representativerepresentative, agent, proxy, and the Representative hereby accepts such appointment. Each Indemnifying Securityholder and Indemnifying Founders, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with for all the powers Securityholders for all purposes under this Agreement, the Escrow Agreement and the Payment Agent Agreement, including the full power and authority as set forth in this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be ’ behalf: (i) to consummate the exclusive agent for transactions contemplated under this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (ii) to negotiate and settle disputes arising under, or relating to, this Agreement and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith, (iii) to receive and disburse to the Securityholders any funds received on behalf of the Indemnifying Securityholders under this Agreement, the Escrow Agreement and Indemnifying Founders the Payment Agent Agreement or otherwise, (iv) to (1) enter into withhold any amounts received on behalf of the Securityholders pursuant to this Agreement and the Escrow Agreement; , including the Representative Holdback Amount, or otherwise to satisfy any and all obligations or liabilities incurred by the Securityholders or the Representative in the performance of their duties hereunder, (2v) give to direct the distribution of funds, designate or engage a paying agent to distribute funds (including the Closing Date Cash Merger Consideration, the Adjustment Amount, if any, payable in accordance with Section 3.7 and receive notices and communications to or funds from Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating Account and the Representative Holdback Amount), make or direct payments of funds from the Representative Holdback Amount, give receipts for funds, authorize deliveries to Parent of cash from the Escrow Account in satisfaction of claims asserted by Parent and object to any claims by any Person against the Escrow Account, (vi) to execute and deliver any amendment or waiver to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the other agreements, instruments, and documents contemplated hereby or any executed in connection herewith (without the prior approval of the Securityholders) and (vii) to take all other documents contemplated actions to be taken by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims the Securityholders in accordance connection with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with Orders with respect to, such claims; (6) take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement and the Payment Agent Agreement and the other agreements, instruments, and documents contemplated hereby or any exhibitexecuted in connection herewith. The Securityholders, annex by approving this Agreement (whether by vote or schedule hereto or thereto (including for the purpose by execution of amending addresses or sharing percentagesa Letter of Transmittal), (8) enter into any waiver or extension pursuant to Section 6.4 further agree that such agency and (9) cause to be paid to proxy are coupled with an interest, are therefore irrevocable without the Indemnifying Securityholders any balance consent of the Representative Fund Amount not used in accordance with and shall survive the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting death, incapacity, bankruptcy, dissolution or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity liquidation of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, Securityholder. All decisions and any action taken actions by the Representative will shall be as valid as if such death, incapacity or other event had not occurred, regardless binding upon all of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable Securityholders and documented expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will no Securityholder shall have the right to recover General object, dissent, protest or otherwise contest the same. The Representative Expenses from shall not have the Representative Fund as such General Representative Expenses are incurredauthority to increase the Liability of any Securityholder on a non pro rata basis. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties If an allocation is not otherwise provided for Lossesin this Agreement, the Representative will have shall distribute funds to the right to recover General Representative Expenses from the General Escrow FundSecurityholders in accordance with their respective Pro Rata Share. Parent may conclusively rely, if and only if no amounts are then remaining in without independent verification or investigation, upon any such decision or action of the Representative Fundas being the binding decision or action of every Securityholder, prior and Parent shall not be liable to any distribution to the Indemnifying Securityholders, and prior to Securityholder or any other Persons for any actions taken or omitted from being taken by them or by Parent in accordance with or reliance upon any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claims; provided, however, that no such expenses shall be recovered from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior to any distribution to the Indemnifying Founders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required decision or action of the Representative. The Representative shall have no duties or obligations to the Securityholders hereunder, except as expressly set forth in this Agreement. By its approval of, or consent to, the Merger and the adoption of this Agreement, its acceptance of any consideration pursuant to this Agreement or delivery of a Letter of Transmittal, each Securityholder hereby irrevocably approves and adopts the appointment of the Representative as such Securityholder’s representative, agent, proxy, and the Representative will not receive any compensation for the Representative’s servicesattorney-in-fact. Notices or communications to or from the Representative will constitute notice to or from each of the Indemnifying Securityholders or Indemnifying Founders, as applicable.107
Appears in 1 contract
Representative. (a) At The Representative may be removed at any time upon the Effective Timewritten election of the Holders representing at least 75% of the aggregate Ownership Interests; provided that such Holders concurrently elect a replacement Representative and Parent is given prompt written notice of such replacement by the Representative (and such appointment is not binding on Parent until after Parent receives such written notice). By virtue of the execution of the Principal Equityholders Agreement by each Principal Equityholder, Xxxxx X. Xxxxxxxx will be by the execution of the Option Cancellation Agreement by each Option Holder, by the execution of the Letter of Transmittal by each Holder and by the consummation of the transactions contemplated hereby, each Holder has constituted and appointed as hereby constitutes and appoints the Representative, and the Representative hereby accepts including any replacement of any such appointment. Each Indemnifying Securityholder and Indemnifying FoundersRepresentative, by virtue of its adoption of this Agreement and approval of the Merger, will be deemed to have appointed and constituted the Representative as their agent and true and lawful attorney-in-fact with the powers full power of substitution and authority as set forth to execute any amendment or waiver of this Agreement and any other document or instrument necessary or advisable in order to carry out the provisions of this Agreement. All such actions of the Representative taken in accordance with this Section 7.16 shall be deemed , to be facts ascertainable outside the merger agreement and shall be binding on the Indemnifying Securityholders. The Representative will be the exclusive agent for and on behalf of the Indemnifying Securityholders and Indemnifying Founders to (1) enter into the Escrow Agreement; (2) give and receive notices and communications communications, to or from dispute any claim any Parent (on behalf of itself or any other Indemnified Person) and/or the Escrow Agent relating Party with respect to this Agreementindemnification hereunder, the Escrow Agreement or any of the other documents contemplated by the Transactions; (3) authorize deliveries to Parent of cash or other property from the Escrow Funds and legally bind each Indemnifying Securityholder to pay cash directly to Parent in satisfaction of claims asserted by Parent (on behalf of itself or any other Indemnified Person, including by not objecting to such claims); (4) object to such claims in accordance with Section 7.6 and Section 7.13; (5) consent or agree to, negotiate, enter into settlements and compromises of, and demand arbitration and to comply with Orders orders of courts with respect toto any dispute or loss, such claims; (6) and to take all actions necessary or appropriate in the judgment of the Representative for the accomplishment of the foregoing. The Holders shall, in each case without having to seek or obtain the consent of any Person under any circumstance; (7) subject to Section 6.3pro-rata based upon their Ownership Interest, execute for and on behalf of each Indemnifying Securityholder and Indemnifying Founder any amendment to this Agreement, the Escrow Agreement or any exhibit, annex or schedule hereto or thereto (including be responsible for the purpose payment of amending addresses or sharing percentages), (8) enter into any waiver or extension pursuant to Section 6.4 all fees and (9) cause to be paid to the Indemnifying Securityholders any balance of the Representative Fund Amount not used in accordance with the terms of the Escrow Agreement. The Representative will be the sole and exclusive means of asserting or addressing any of the above on behalf of the Indemnifying Securityholders and Indemnifying Founders, and no Indemnifying Securityholder or Indemnifying Founder will have any right to act on its own behalf with respect to any such matters, other than any claim or dispute against the Representative. This appointment of agency and this power of attorney is coupled with an interest and will be irrevocable and will not be terminated by any Indemnifying Securityholder or Indemnifying Founder or by operation of Law, whether by the death or incapacity of any Indemnifying Securityholder or Indemnifying Founder or the occurrence of any other event, and any action taken by the Representative will be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not any Indemnifying Securityholder, Indemnifying Founder or the Representative will have received any notice thereof. All reasonable and documented expenses, if any, expenses reasonably incurred by the Representative in connection with the performance of his, her or performing its duties as the Representative in connection with General Liability Claims will be borne and paid by the Indemnifying Securityholders according to their Aggregate Escrow Funding Percentage (the “General Representative Expenses”). All reasonable expenses, if any, incurred by the Representative in connection with the performance of his, her or its duties as the Representative in connection with Litigation Liability Claims will be borne and paid by the Indemnifying Founders according to their Unit Litigation Funding Percentage (the “Litigation Representative Expenses”). The Representative will have the right to recover General Representative Expenses from the Representative Fund as such General Representative Expenses are incurred. Following the termination of the General Escrow Claim Period, the resolution of all General Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover General Representative Expenses from the General Escrow Fund, if and only if no amounts are then remaining in the Representative Fund, prior to any distribution to the Indemnifying Securityholders, and prior to any such distribution, will deliver to the Escrow Agent a certificate setting forth the General Representative Expenses actually incurred with respect to General Liability Claimsunder this Agreement; provided, however, that Parent shall have no such expenses shall be recovered obligation or Liability arising from the cash then on deposit in the General Escrow Fund attributable to an Indemnifying Securityholder who does not give their prior written consent to such reimbursement. Following the termination of the Litigation Escrow Claim Period, the resolution of all Litigation Liability Claims and the satisfaction of all claims made by Indemnified Parties for Losses, the Representative will have the right to recover Litigation Representative Expenses from the Litigation Escrow Fund prior or relating to any distribution to the Indemnifying Founders, and prior to claim or dispute between any such distribution, will deliver to the Escrow Agent a certificate setting forth the Litigation Representative Expenses actually incurred with respect to Litigation Liability Claims. In the event that neither the Representative Fund nor the Litigation Escrow Fund are available to reimburse the Representative for Litigation Representative Expenses, the Indemnifying Founders shall indemnify the Representative according to their Aggregate Litigation Funding Percentage for such expenses. No bond will be required of the Representative, Holder and the Representative will not receive any compensation for under this Section 12.1 (and Parent’s rights, including Parent’s right to rely on the Representative’s services. Notices or communications to or from actions and decisions of the Representative will constitute notice to or from each and other rights under this Agreement) shall not be affected in any way thereby. All actions and decisions of the Indemnifying Securityholders or Indemnifying FoundersRepresentative may be relied upon by the Parent, as applicablethe Company and any third person, and shall be binding and conclusive upon each Shareholder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Tailwind Acquisition Corp.)
