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Common use of Appointment of Representative Clause in Contracts

Appointment of Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Basin Water, Inc.), Agreement and Plan of Merger (Basin Water, Inc.)

Appointment of Representative. (a) In order Each of the New Stockholders hereby appoints Media/Communications Partners III Limited Partnership, with power of substitution, as its exclusive agent to efficiently administer act on its behalf with respect to any and all actions to be taken under or amendments or modifications to be made to this Agreement (the transactions contemplated hereby"M/C Representative"). The M/C Representative shall take, including and the defense and/or settlement of New Stockholders agree that the M/C Representative shall take, any claims for and all actions which the M/C Representative believes are necessary or advisable under this Agreement for and on behalf of each of the New Stockholders, as fully as if each of the New Stockholders may be required was acting on its own behalf, including, without limitation, dealing with the Company and the other parties hereto with respect to indemnify all matters arising under this Agreement, entering into any amendment or modification to this Agreement deemed advisable by the Parent Indemnified Parties M/C Representative and taking any and all other actions specified in or contemplated by this Agreement. The Company and the other parties hereto shall have the right to rely upon all actions taken or not taken by the M/C Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon each of the Stockholders New Stockholders. (b) Each of the CCI Shareholders hereby agree appoints Xxxxxxx, with power of substitution, as its exclusive agent to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative act on its behalf with respect to any and all actions to be taken under or amendments or modifications to be made to this Agreement (the “Stockholders’ "CCI Representative"). The Stockholders’ CCI Representative is hereby authorized to take shall take, and the CCI Shareholders agree that the CCI Representative shall take, any and all action actions which the CCI Representative believes are necessary or advisable under this Agreement for and on behalf of each of the CCI Shareholders, as is contemplated fully as if each of the CCI Shareholders was acting on its own behalf, including, without limitation, dealing with the Company and the other parties hereto with respect to be taken by the Stockholders by the terms of all matters arising under this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter entering into any settlement which affects amendment or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions modification to this Agreement deemed advisable by the Stockholders’ CCI Representative shall be binding upon and taking any and all of other actions specified in or contemplated by this Agreement. The Company and the Stockholders and no Stockholder other parties hereto shall have the right to object, dissent, protest rely upon all actions taken or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification not taken by the Parent CCI Representative pursuant to this Agreement, all of which actions or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder omissions shall have any cause of action against the Parent in reliance be legally binding upon the instructions or decisions each of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the ClosingCCI Shareholders. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 2 contracts

Samples: Stockholders' Agreement (McLeodusa Inc), Stockholders' Agreement (Interstate Energy Corp)

Appointment of Representative. (a) In order Each Common Stockholder, by their adoption and approval of this Agreement, and each Preferred Stockholder and Optionholder hereby irrevocably constitutes and appoints Accel-KKR Capital Partners III, LP as its true and lawful agent, attorney-in-fact, proxy and representative and authorizes it for such Common Stockholder, Preferred Stockholder or Optionholder and in such Common Stockholder’s, Preferred Stockholder’s or Optionholder’s name, place and stead, in any and all capacities, to efficiently administer do and perform each and every act and thing (including executing documents and other instruments) necessary or desirable to be done in connection with the transactions contemplated herebyTransactions, including as fully to all intents and purposes as the defense and/or settlement undersigned might or could do in person. Each Common Stockholder, by their adoption and approval of this Agreement, and each Preferred Stockholder and Optionholder acknowledges and agrees that upon execution of this Agreement, upon any delivery by the Representative of any claims for which waiver, amendment, agreement, opinion, certificate or other document executed by Accel-KKR Capital Partners III, LP in its capacity as the Representative, such Common Stockholder, Preferred Stockholder or Optionholder shall be bound by such documents or action as fully as if such Common Stockholder, Preferred Stockholder or Optionholder had executed and delivered such documents. (b) Each Common Stockholder, by their adoption and approval of this Agreement, and each Preferred Stockholder and Optionholder agrees that Parent, Merger Sub and the Company shall be entitled to rely on any action taken by the Representative, on behalf of the Common Stockholders, Preferred Stockholders may and/or Optionholders, pursuant to Section 10.20(a) above (each, an “Authorized Action”), and that each Authorized Action shall be required binding on each Common Stockholder, Preferred Stockholder and/or Optionholder, as applicable, as fully as if such Common Stockholder, Preferred Stockholder and/or Optionholder had taken such Authorized Action. (c) Each of the parties hereto hereby acknowledges and agrees that Accel-KKR Capital Partners III, LP shall have no liability whatsoever to indemnify any other party hereto in its capacity as the Parent Indemnified Parties pursuant Representative. (d) Parent, Merger Sub and the Surviving Corporation shall be entitled to deal exclusively with the Representative on all matters relating to this Agreement, the Stockholders Company Documents and the other agreements contemplated hereby agree and thereby and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Stockholder or Optionholder by the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take in connection herewith, and on any and all other action as is contemplated taken or purported to be taken on behalf of any Stockholder or Optionholder by the Stockholders Representative in connection herewith, as fully binding upon such Stockholder or Optionholder. The Representative may (and each Stockholder and Optionholder hereby authorizes it to), but shall not be required to, make claims and seek recourse on behalf of one or more Stockholder Parties as contemplated by or related to or arising from this Agreement or the other documents referred to herein or otherwise relating to the Transactions. (e) Neither Parent, Merger Sub nor Surviving Corporation shall be liable to any Stockholder or Optionholder for any action taken by the terms Representative pursuant to this Agreement or any Company Document. (f) At all times from and after the date of this Agreement, provided thatexcept as set forth in Section 7.9 (Publicity), the Stockholders’ Representative shall not consent disclose any confidential non-public information it obtains in its capacity as the Representative hereunder with respect to the entry of any judgment or enter into any settlement which affects or binds any Company and Surviving Corporation, except in each case for information that is in the public domain other than through conduct of the Stockholders without Representative or as may be legally required. If the prior Representative is requested or required (by oral request or written consent request for information or documents) in any legal proceeding to disclose any such confidential information, then the Representative shall notify Parent promptly in writing (to the extent practicable) of such Stockholder (which consent shall the request or requirement so that Parent may seek an appropriate protective order at its cost. Notwithstanding the foregoing, Parent and the Surviving Corporation acknowledge that in the course of the Representative’s investment in the Company, the Representative’s exposure to the confidential information of the Company will likely serve to give the Representative increased knowledge and understanding of the Company’s industry, technology, and business in a way that cannot be unreasonably withheld)reasonably expected to be forgotten or separated from the Representative’s overall knowledge base. All decisions and actions Accordingly, the Representative will not be in breach of this Agreement by the Stockholders’ Representative shall be binding upon all reason of remembering, retaining, or making use of general ideas or general concepts that may form a part of the Stockholders Representative’s increased knowledge as described in the preceding sentence. (g) Each Common Stockholder, by their adoption and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution approval of this Agreement, and each Preferred Stockholder and Optionholder agrees to reimburse and indemnity the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent any Representative Indemnification pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing3.8. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement (Verint Systems Inc)

Appointment of Representative. (a) In order By voting in favor of the Merger, each of the Company Stockholders approves the designation of and designates Xxxxx Xxx as the Representative of the Company Stockholders and as the attorney- in-fact and agent for and on behalf of each Company Stockholder with respect to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which indemnification under Article 11 and the Stockholders may be required to indemnify taking by the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment Representative of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated actions and the making of any decisions required or permitted to be taken by the Stockholders by the terms of Representative under this Agreement, provided thatincluding the exercise of the power to: (a) authorize the release or delivery to Acquirer of Escrow Funds in satisfaction of indemnity claims by Acquirer or any other Acquirer Indemnified Person pursuant to Article 11; (b) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (c) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article 11; and (d) take all actions necessary in the Stockholders’ judgment of the Representative shall not consent for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Company Stockholder with respect to the entry disposition, settlement or other handling of all claims under Article 11 hereof and all rights or obligations arising under Article 11. The Company Stockholders will be bound by all actions taken and documents executed by the Representative in connection with Article 11, and Acquirer will be entitled to rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Company Stockholder in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly and The Company Stockholders shall severally indemnify the Representative and hold him harmless the Stockholders’ Representative from and against any Damages loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of Article 11 (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid by the Company Stockholders to the Representative pro rata based on each Stockholder's Pro Rata Share.

Appears in 1 contract

Samples: Merger Agreement (Interwoven Inc)

Appointment of Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any appointed as, and all action the Representative hereby acknowledges and accepts such appointment, as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any representative of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions Shareholders and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution for each Optionholder executing an Option Cancellation Agreement for purposes of this Agreement, the Stockholders agree that: Exchange Agreement and the Escrow Agreement (collectively, the “Representative Agreements”) at and after the Effective Time. The Representative may resign at any time, and the Representative may be removed with the consent of the Principal Shareholders that owned in the aggregate, immediately prior to the Effective Time, more than 50% of the Shares collectively owned by such Shareholders (a “Majority in Interest”). In the event that a Representative has resigned or been removed, a new Representative shall be appointed with the consent of a Majority in Interest, such appointment to become effective upon the written acceptance thereof by the new Representative. Each of the Principal Shareholders shall use its or his respective commercially reasonable efforts to appoint a new Representative and provide written notice to Parent of such new appointment as soon as practicable following such resignation or removal. No such resignation or appointment of a new Representative shall be effective as against Parent, the Merger Sub or the Surviving Corporation until such time as Parent shall have received written notice of the appointment of a new Representative. Subject to Section 1.11(b) below, the Representative shall have the following non-exclusive powers at and after the Effective Time as the representative of the Shareholders and for each Optionholder executing an Option Cancellation Agreement: (i) the Parent shall be able power to rely exclusively on the instructions and decisions of the Stockholders’ Representative as act for such Securityholders with regard to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative obligations hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; ; (ii) the power to compromise any claim on behalf of such Securityholders and to transact matters of litigation or arbitration, in connection with the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; Representative Agreements; (iii) the power to do or refrain from doing all actions, decisions such further acts and instructions deeds on behalf of such Securityholders that the Representative deems necessary or appropriate in its sole discretion consistent with the provisions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; Agreements; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and power to execute all such documents as the Representative shall be enforceable notwithstanding any rights deem necessary or remedies that any Stockholder may have appropriate in connection with the transactions contemplated by this Agreement; therewith; and (v) the provisions power to receive service of this Section 3.09 process in connection with any claims hereunder; provided, however, that in no event shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include Representative have the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability power to act on behalf of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of such Securityholders under the Shares of the Company prior to the ClosingPrincipal Shareholders Agreement. (b) The term “Stockholders’ Representative“ Representative shall have such powers and authority as used herein are necessary to carry out the functions assigned to it under this Agreement. Parent, the Merger Sub, the Surviving Corporation and each of their respective Affiliates shall be deemed entitled to include conclusively rely upon any and all written actions and instructions delivered by the Representative on behalf of Securityholders under or pursuant to the Representative Agreements. The Representative shall be permitted to act on behalf of the Securityholders with respect to any matter under the Representative Agreements; provided, that a successor representative. Majority in Interest (cand GE Equity, in the case of a settlement or admission of any kind that specifically names GE Equity or any Affiliate thereof as having engaged in wrongful activity) The Stockholders’ consent to any release to Parent or the Merger Sub (including, after the Closing, the Surviving Corporation) from the Indemnity Fund, the Post-Closing Adjustment Fund or the CUNA Escrow Account by the Representative; and provided, however, that, notwithstanding anything set forth herein to the contrary, the Representative shall not be liable authorized to act on behalf of the Securityholders with respect to the Stockholders for Principal Shareholders Agreement. The Representative shall have no liability to any act done Securityholder with respect to actions taken or omitted to be done hereunder while acting taken in good faith its capacity as Representative except with respect to the Representative’s willful misconduct. The Representative will at all times be entitled to rely on any directions received from (i) a Principal Shareholder or (ii) a Majority in Interest; provided, however, that the Representative shall not be required to follow any such direction, and shall be under no obligation to take any action in its capacity as Representative, unless the Representative has been provided with funds, security or indemnities which, in the exercise sole determination of reasonable judgmentthe Representative, are sufficient to protect the Representative against the costs, expenses and liabilities which may be incurred by the Representative in responding to such direction or taking such action. Each Stockholder agrees The Representative shall be entitled to jointly engage such counsel, experts and severally indemnify other agents and hold harmless consultants as it shall deem necessary in connection with exercising its powers and performing its functions hereunder and (in the Stockholders’ Representative from and against any Damages incurred without gross negligence or absence of willful misconduct on the part of the Stockholders’ Representative) shall be entitled to conclusively rely on the opinions and advice of such persons. Once no further funds exist in the Representative Fund, the Representative shall be entitled to reimbursement from the Securityholders (which reimbursement shall be paid by each Securityholder in accordance the percentages set forth on the Escrow Allocation Schedule) for all reasonable expenses, disbursements and advances (including fees and disbursements of its counsel, experts and other agents and consultants) incurred by the Representative in such capacity, and for indemnification against any loss, liability or expenses arising out of actions taken or omitted to be taken in connection with the acceptance or administration its capacity as Representative (except for those arising out of the Stockholders’ Representative’s duties hereunderwillful misconduct), including the costs and expenses of investigation and defense of claims.

Appears in 1 contract

Samples: Merger Agreement (Equifax Inc)

Appointment of Representative. (a) In order to efficiently administer 17.1 The Management Sellers hereby appoint Jan Bernhardsson as their representative who may, acting alone, authorise the transactions contemplated hereby, including the defense and/or settlement making of any claims for which request, election, proposal or consent expressed to be made on behalf of the Stockholders may Management Sellers (in their capacity as Management Sellers) to the Purchaser or to the Institutional Sellers. The Management Sellers shall be required to indemnify bound by the Parent Indemnified Parties actions taken by the Management Sellers’ Representative pursuant to this AgreementClause. The Purchaser shall be entitled at its sole discretion to have regard only to, and to rely absolutely upon and act in accordance with, without any liability to any party for having relied or acted thereon, notices, including requests, elections or proposals, issued by the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “StockholdersManagement Sellers’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry Service of any judgment notice or enter into any settlement which affects or binds any of other communication on the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the StockholdersManagement Sellers’ Representative shall be binding upon deemed to constitute valid service thereof on all the Management Sellers. The Management Sellers may appoint a replacement Management Sellers’ Representative by decision taken by Management Sellers representing a two thirds majority of the Stockholders aggregate number of A Ordinary Shares and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification B Preference Shares held by the Parent pursuant to this Agreement, or any other actions taken by Management Sellers in the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares capital of the Company immediately prior to Completion, provided that five (5) Business Days’ prior written notice of such appointment has been given to the Closing. (b) Institutional Sellers’ Representative and the Purchaser. The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The StockholdersManagement Sellers’ Representative shall not be liable to any of the Stockholders Management Sellers for any claims whatsoever arising from any act done or omitted omission undertaken by him in his capacity as the Management Sellers’ Representative, save in the case of fraud or wilful default. 17.2 The Institutional Sellers hereby appoint Xxxx Xxxxxx as their representative who may, acting alone, authorise the making of any request, election, proposal or consent expressed to be done hereunder while acting made on behalf of the Institutional Sellers (in good faith their capacity as Institutional Sellers) to the Purchaser or to the Management Sellers. The Institutional Sellers shall be bound by the actions taken by the Institutional Sellers’ Representative pursuant to this Clause. The Purchaser shall be entitled at its sole discretion to have regard only to, and to rely absolutely upon and act in accordance with, without any liability to any party for having relied or acted thereon, notices, including requests, elections or proposals, issued by the Institutional Sellers’ Representative. The Institutional Sellers’ Representative shall not issue any of the same nor make any such request, election, proposal or consent where such issuance or action would adversely affect any Institutional Seller disproportionately to any other Institutional Seller. Service of any notice or other communication on the Institutional Sellers’ Representative shall be deemed to constitute valid service thereof on all the Institutional Sellers. The Institutional Sellers’ Representative shall pass any notices received pursuant to this Agreement on behalf of an Institutional Seller to such Institutional Seller without undue delay. The Institutional Sellers may appoint a replacement Institutional Sellers’ Representative by decision taken by Institutional Sellers representing a two thirds majority of the aggregate number of A Ordinary Shares and B Preference Shares held by the Institutional Sellers in the exercise capital of reasonable judgmentthe Company immediately prior to Completion, provided that five (5) Business Days’ prior written notice of such appointment has been given to the Purchaser and the Management Sellers’ Representative. Each Stockholder agrees to jointly and severally indemnify and hold harmless the StockholdersThe Institutional Sellers’ Representative from and against shall not be liable to any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and Institutional Sellers for any claims whatsoever arising out of from any act or omission undertaken by him in connection with his capacity as the acceptance or administration of the StockholdersInstitutional Sellers’ Representative’s duties hereunder, save in the case of fraud or wilful default.

Appears in 1 contract

Samples: Sale and Purchase Agreement (Amc Entertainment Holdings, Inc.)

Appointment of Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which the Stockholders CSE Holders may be required to indemnify the Parent Buyer Indemnified Parties pursuant to this Agreement, the Stockholders and Hill hereby agree to the appointment of Xxxxx X. Xxxxx Sxxxxx Xxxxxxxx as the Stockholders’ Representative and Hill’s representative (the “Stockholders’ Representative). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders or Hill by the terms of this Agreement, provided that, the Stockholders’ Representative shall not (i) consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders CSE Holders without the prior written consent of such Stockholder CSE Holder (which consent shall not be unreasonably withheld, delayed, denied or conditioned), (ii) without limiting the foregoing, take any actions (directly or indirectly) under this Agreement or any other document or instrument being executed in connection herewith, including consenting to any amendments to or waivers of the terms and conditions set forth herein or therein, that have an adverse affect on any CSE Holders unless such action (x) adversely affects the Stockholders’ Representative in a substantially identical manner or (y) is consented to in writing by each such adversely affected CSE Holder, (iii) without limiting the foregoing, consent to any amendment to or waiver of any of the indemnification provisions set forth in Article VII hereof, in each case without the prior written consent of the CSE Holders, and (iv) be authorized to take any action in respect of any claim that is made by any Person (including a Governmental Authority) against any CSE Holder if such claim is not made against the Stockholders’ Representative or other CSE Holders hereunder. All Subject to the foregoing, all decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders CSE Holders and no Stockholder CSE Holder shall have the right to object, dissent, protest or otherwise contest the same. By Subject to the foregoing, by their execution of this Agreement, the Stockholders CSE Holders agree that: (i) the Parent Buyer shall be able to rely exclusively on the instructions (including wire instructions) and decisions of the Stockholders’ Representative as to matters contemplated by Sections 1.7, 1.10, 1.13, 1.18 and 1.19 and the settlement of claims for indemnification by the Parent or against Buyer pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent Buyer in reliance upon the instructions or decisions decision of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the StockholdersCSE Holders; (iviii) the provisions of this Section 3.09 1.20 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder CSE Holder may have in connection with the transactions contemplated by this Agreement; (viv) the provisions of this Section 3.09 1.20 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each StockholderCSE Holder, and and, for the purposes of this Section 1.20, any references in this Agreement to a Stockholder CSE Holder shall mean and include the successors to the Stockholders’ CSE Holder’s rights hereunder, whether pursuant to testamentary disposition, the laws Laws of descent and distribution or otherwise; and (viv) in the case of the resignation or the death or inability to act of Xxxxx X. XxxxxSxxxxx Xxxxxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares shares of the Company Common Stock immediately prior to the Closing. (b) The term “Stockholders’ Representativeas used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders CSE Holders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder CSE Holder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s Representative duties hereunder.

Appears in 1 contract

Samples: Merger Agreement (Rock-Tenn CO)

Appointment of Representative. (a) In order By voting in favor of the Merger, each of the Worldprints Shareholders approves the designation of and designates Xxx X. Xxxxxx as the representative of the Worldprints Shareholders (the "Representative") and as the attorney-in-fact and agent for and on behalf of each Worldprints Shareholder with respect to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which indemnification under Article 11 for Ordinary Damages and/or Special Damages, except Special Damages asserted against any of the Stockholders may be required to indemnify the Parent Indemnified Parties Worldprints Founders pursuant to this AgreementSection 11.2(d) (each a "Representative Claim"), and the Stockholders hereby agree to taking by the appointment Representative of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated actions and the making of any decisions required or permitted to be taken by the Stockholders by Representative under this Agreement, including, without limitation, the exercise of the power to: (a) authorize the release or delivery to Excite@Home of shares of Excite@Home Preferred Stock and any other assets deposited in escrow pursuant to the terms of this AgreementSection 2.5 and Article 11 hereof (including any shares of Excite@Home capital stock or other securities into which Excite@Home Preferred Stock is converted or exchanged or which is received in respect of such shares of Excite@Home Preferred Stock or other capital stock and securities) in satisfaction of Representative Claims by Excite@Home or any other Excite@Home Indemnified Person (as defined herein) pursuant to Article 11; (b) agree to, provided thatnegotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such Representative Claims; (c) arbitrate, resolve, settle or compromise any Representative Claim made pursuant to Article 11; and (d) take all actions necessary in the Stockholders’ judgment of the Representative shall not consent for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Worldprints Shareholder with respect to the entry disposition, settlement or other handling of all Representative Claims under Article 11 hereof and all rights or obligations arising under Article 11 related to Representative Claims. The Worldprints Shareholders will be bound by all actions taken and documents executed by the Representative in connection with Representative Claims, and Excite@Home will be entitled to rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative related thereto. The Worldprints Shareholders hereby acknowledge and agree that (i) in performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that:Representative will not be liable to any Worldprints Shareholder in the absence of gross negligence or willful (ia) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative will serve without compensation; provided, however, that the Representative will be compensated at an hourly rate of $150 for any time in excess of fifty hours in the aggregate that he spends in performing the duties of the Representative“ as used herein , in addition to any reasonable expenses the Representative may incur in performing the duties of the Representative. The Representative shall be deemed entitled to include make an assessment against any Worldprints' Shareholder in respect of the Representative's time charges or expenses. Such assessment shall be made by a successor representative. written notice to the Worldprints' Shareholders in the manner provided in this Agreement for the giving of notice, in an amount equal to each Worldprints Shareholder's pro rata share of any assessment (csuch pro rata share being based upon the respective ownership interests of the Worldprints' Shareholders set forth beside their names on Schedule 3.4.1(a) The Stockholders’ of this Agreement) and the due date for payment of the assessment and shall specify in reasonable detail the facts or circumstances giving rise to the assessment. Each Worldprints' Shareholder shall make payment in full of its share of an assessment no later than ten calendar days after the payment date specified in the notice of assessment. In the event a Worldprints' Shareholder does not pay the full amount of the assessment, the Representative shall be entitled to payment from such Worldprints Shareholder of the amount shown in the notice of assessment, plus an additional 25% of the requested assessment as liquidated damages (and not as a penalty) for failure to timely pay the assessment, in addition to any costs of collection, including reasonable attorneys' fees and court costs. Pending application of the proceeds of an assessment, the Representative shall deposit the proceeds of an assessment in a money market demand account at a commercial bank having an office in Boulder, Colorado. Such account will also serve as the depository for any excess funds remaining after application of the proceeds of an assessment, provided that any assessment funds that remain unused for a period of 90 days shall be liable returned to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunderappropriate Worldprints' Shareholders.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (At Home Corp)

Appointment of Representative. (a) In order Each Effective Time Holder approves the designation of and designates Xxxxxxx X. Work as the representative of the Effective Time Holders and as the attorney-in-fact and agent for and on behalf of each Effective Time Holder (such person and any successor, the “Representative”) with respect to efficiently administer claims for indemnification pursuant to this Article 11 and the transactions contemplated hereby, including taking by the defense and/or settlement Representative of any claims for which and all actions and the Stockholders may making of any decisions required or permitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, including the Stockholders hereby exercise of the power to: (a) authorize the release or delivery to Acquirer of Escrow Cash from the Escrow Fund in satisfaction of indemnification claims of any Indemnified Person pursuant to this Article 11; (b) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claim for indemnification pursuant to this Article 11; (c) resolve, settle or compromise any claim for indemnification made pursuant to this Article 11; and (d) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Effective Time Holder with respect to the appointment disposition, settlement or other handling of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“)all claims for indemnification pursuant to this Article 11 and all rights or obligations arising under this Article 11. The Stockholders’ Representative is hereby authorized to take any Effective Time Holders will be bound by all actions taken and all action as is contemplated to be taken documents executed by the Stockholders by Representative in connection with this Article 11, and the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent Indemnified Persons will be entitled to the entry of rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Effective Time Holder in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly Effective Time Holder will severally, and severally not jointly, on a pro rata basis based on such Effective Time Holder’s Pro Rata Share of the Escrow Fund, indemnify and hold harmless the Stockholders’ Representative from and against any Damages Liability incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Article 11 (including the hiring of counsel and the incurring of legal fees and costs) will be paid directly by the Effective Time Holders to the Representative on a pro rata basis based on each Effective Time Holder’s Pro Rata Share of the Escrow Fund, and no such amounts will be paid from the Escrow Fund. The Representative shall have no obligation under this Agreement, whether with respect to Third-Party Claims or non-Third Party Claims, for any amounts in excess of the Escrow Fund then held by the Escrow Agent under the Escrow Agreement (other than in his capacity as a Company Stockholder for his Pro Rata Share of any Damages related to Special Claim in excess of the Escrow Fund). The Representative shall have no obligation under this Agreement in the case of any failure by any Effective Time Holder (other than the Representative himself) to have good and valid title to the shares of Company Capital Stock or Company Options held by such Effective Time Holder as set forth in the Spreadsheet. The person serving as the Representative may be replaced from time to time by the Effective Time Holders who held, as of immediately prior to the Effective Time, a majority of the outstanding shares of Company Capital Stock. (b) The Representative shall be entitled to reimbursement from the Expense Funds, in accordance with Section 2.4 for expenses that are incurred in connection with its performance hereunder. If the aggregate amount of such expenses exceeds the Expense Funds, then each Effective Time Holder shall be liable for its Pro Rata Share of such excess expenses (including reasonable attorneys’ fees). In the event that any Effective Time Holder shall not have reimbursed the Representative for any such excess expenses, the Representative shall be entitled to reimbursement in the amount of such expenses out of any portion of the Escrow Fund that otherwise would be distributed to the Effective Time Holders, after satisfaction or resolution of all indemnification claims.

Appears in 1 contract

Samples: Merger Agreement (Interwoven Inc)

Appointment of Representative. (a) In order to efficiently administer By voting in favor of the transactions contemplated herebyMerger, including ----------------------------- each of the defense and/or settlement Kendara Stockholders approves the designation of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx and designates Xxxxxxx X. Xxxxx as the Stockholders’ Representative (of the “Stockholders’ Representative“). The Stockholders’ Kendara Stockholders and as the attorney-in-fact and agent for and on behalf of each Kendara Stockholder with respect to claims for indemnification under Article 11 and the taking by the Representative is hereby authorized to take of any and all action as is contemplated actions and the making of any decisions required or permitted to be taken by the Stockholders by Representative under this Agreement, including, without limitation, the exercise of the power to: (a) authorize the release or delivery to Excite@Home of shares of Excite@Home Preferred Stock and any other assets deposited in escrow pursuant to the terms of this AgreementSection 2.5 and Article 11 hereof (including any shares of Excite@Home capital stock or other securities into which Excite@Home Preferred Stock is converted or exchanged or which is received in respect of such shares of Excite@Home Preferred Stock or other capital stock and securities) in satisfaction of indemnity claims by Excite@Home or any other Excite@Home Indemnified Person (as defined herein) pursuant to Article 11; (b) agree to, provided thatnegotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (c) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article 11; and (d) take all actions necessary in the Stockholders’ judgment of the Representative shall not consent for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Kendara Stockholder with respect to the entry disposition, settlement or other handling of all claims under Article 11 hereof and all rights or obligations arising under Article 11. The Kendara Stockholders will be bound by all actions taken and documents executed by the Representative in connection with Article 11, and Excite@Home will be entitled to rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Kendara Stockholder in the exercise absence of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.the

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (At Home Corp)

Appointment of Representative. The Principal Company Stockholder will be, and hereby is, upon the receipt of the appropriate stockholder adoption of the Merger Agreement and approval of the Merger, appointed as the representative of (ai) In order all Shareholders of Company Common Stock immediately prior to efficiently administer the transactions contemplated herebyEffective Time who are entitled to receive Merger Payments, including both before and after the defense and/or settlement First Closing, (ii) the holders of any claims for which Vested Stock Options immediately prior to the Stockholders may Effective Time, and (iii) the holders of Unvested Stock Options immediately prior to the Effective Time ((i) and (ii) being collectively, the “Other Holders”) and shall be required to indemnify designated the Parent Indemnified Parties pursuant to holder representative (the “Holder Representative”) with the rights and obligations as set forth in this Agreement, the Stockholders hereby agree Letter of Transmittal and the Escrow Agreement. Notice or communications to or from the appointment Holder Representative pursuant to this Section 2.3 or the Escrow Agreement shall constitute notice to or from each of Xxxxx X. Xxxxx as the Stockholders’ Representative (Other Holders and the “Stockholders’ Representative“)Unvested Stock Option holders. The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Holder Representative shall not consent to the entry of be liable for any judgment action taken or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders taken as Holder Representative, and no Stockholder shall have the right to objectOther Holder, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, Unvested Stock Option holder or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder Person shall have any cause of action against the Parent in reliance upon Holder Representative for any action taken, decision made or instruction given by the instructions Holder Representative under this Section 2.3 or decisions the Escrow Agreement except for fraud or for willfully disregarding its duties as Holder Representative under this Agreement and the Escrow Agreement. A decision, act, consent or instruction (or failure to take such actions) of the Stockholders’ Representative; (ii) Holder Representative pursuant to this Section 2.3 or the extent this Escrow Agreement requires that Parent give notice to or seek shall constitute a decision of all the consent of Stockholders with respect to any matter referred to hereinOther Holders and the Unvested Stock Option holders, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, binding and conclusive upon each of the Other Holders and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interestUnvested Stock Option holders, and Parent may rely upon any decision, act, consent or instruction of the Holder Representative for all purposes hereunder. Parent shall not be enforceable notwithstanding a third party beneficiary under, or be entitled to any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary dispositionto, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the ClosingEscrow Agreement. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 1 contract

Samples: Merger Agreement (Weight Watchers International Inc)

Appointment of Representative. The approval of this Agreement by the Glycosan Stockholders shall constitute the following actions binding upon the Glycosan Stockholders: (a) In order the irrevocable authorization, direction and appointment of Xxxxxx X Xxxxxx as stockholder representative, and not personally (the “Representative”), as the sole and exclusive agent, attorney-in-fact and representative of each Glycosan Stockholder and their respective heirs, representatives and successors in respect of the Escrow Agreement and the Escrow Units; (b) the approval and authorization for all of the arrangements relating thereto, including: (i) the execution, delivery and performance of the Escrow Agreement by the Representative, (ii) the receipt and distribution of the Escrow Units pursuant to efficiently administer the transactions contemplated hereby, including terms hereof and of the defense and/or settlement of Escrow Agreement; (iii) the making any claims for and all determinations which the Stockholders may be required or permitted to indemnify be taken by the Parent Indemnified Parties Representative or the Glycosan Stockholders; and (iv) the exercise of such rights, power and authority as are incidental to the foregoing; and (c) the initial Representative shall indicate in writing his acceptance of such appointment, effective upon approval by the Glycosan Stockholders of the Merger, and his agreement to then be bound by the terms of this Agreement as they relate to the Representative and the duties and responsibilities thereof, by executing this Agreement for such limited purpose in the space provided on the signature pages hereof.Any actions, exercises of rights, power or authority and any decisions or determinations made by the Representative within the scope of his appointment pursuant to this Agreement, the Stockholders hereby agree shall be absolutely and irrevocably binding on each Glycosan Stockholder as if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s individual capacity, but in any event only to the appointment extent of Xxxxx X. Xxxxx the rights of each such Glycosan Stockholder in its capacity as a Glycosan Stockholder holding Glycosan or rights in and to the receipt or payment of the Merger Consideration pursuant hereto. (d) The Representative shall not incur any liability with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other document believed by the Representative to be genuinely and duly authorized, nor for other action or inaction as the Stockholders’ Representative, excepting only the willful misconduct or gross negligence of the Representative. If and in the event that the immediately preceding sentence shall not be given effect for any reason, the Representative shall be indemnified and held harmless by the Glycosan Stockholders to the extent of their respective pro rata interests in the Escrow Units (subject in any event to the “Stockholders’ Representative“claims of BioTime). The Stockholders’ Representative is hereby authorized to take , against and from any and all action as is contemplated debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to be taken become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) incurred or suffered by the Stockholders by Representative in connection with or in furtherance of his performance as such hereunder, except to the terms extent resulting from, relating to or in respect of this Agreement, provided that, any actions constituting only the Stockholders’ willful misconduct or gross negligence of the Representative. The Representative shall not consent have recourse to the entry of any judgment or enter into any settlement which affects or binds any Escrow Units in each case to the extent of the Glycosan Stockholders without interest therein, to satisfy any claims or obligations in respect of indemnity as herein above provided, and the prior written consent Glycosan Stockholders shall upon the approval hereof be deemed to have assented thereto. (e) In the event of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ death, physical or mental incapacity or resignation of the Representative, a successor Representative shall be binding upon all elected by a majority vote of the Glycosan Stockholders and no Stockholder who have any then-existing indemnity obligations or payment rights (whether contingent or absolute) hereunder, with each such holder (or his successor or assign) to be given a vote equal to the number of common equivalent shares of Glycosan held by such holder immediately prior to the Effective Time pursuant to a procedure to be mutually agreed upon among such holders. Pending the election of a successor Representative, such holder holding the largest number of common equivalent shares of Glycosan prior to the Effective Time shall have the right to object, dissent, protest act as the interim Representative (or otherwise contest the same. By their execution of this Agreementif he declines, the Stockholders agree that: (i) next largest and successively thereafter). Each interim and successor Representative shall have all the Parent shall be able to rely exclusively on power, authority, rights and privileges conferred by this Agreement upon the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunderinitial Representative, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representativeas used herein shall be deemed to include a any interim or successor representative. (c) The Stockholders’ Representative. Any successor Representative shall not be liable to the Stockholders for any act done or omitted indicate in writing his acceptance of such appointment and his agreement to be done hereunder while acting in good faith bound by the terms of this Agreement and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.Escrow Agreement

Appears in 1 contract

Samples: Merger Agreement (Biotime Inc)

Appointment of Representative. (a) In order to efficiently administer Each Company Holder approves the transactions contemplated hereby, including the defense and/or settlement designation of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx and designates Xxxxxx X. Xxxxx XxXxxxxxxx as the Stockholders’ Representative of the Company Holders and as the attorney-in-fact and agent for and on behalf of each Company Holder (the “Stockholders’ Representative“). The Stockholders’ ”) with respect to claims for indemnification under this Article 11 and the taking by the Representative is hereby authorized to take of any and all action as is contemplated actions and the making of any decisions required or permitted to be taken by the Stockholders by the terms of Representative under this Agreement, provided thatincluding the exercise of the power to: (a) authorize the release or delivery to Acquirer of the General Escrow Fund and the Special Escrow Fund in satisfaction of indemnification claims of any Indemnified Person pursuant to this Article 11; (b) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims for indemnification; (c) arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to this Article 11; and (d) take all actions necessary in the Stockholders’ judgment of the Representative shall not consent for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Company Holder with respect to the entry disposition, settlement or other handling of all claims for indemnification under this Article 11 and all rights or obligations arising under this Article 11. The Company Holders will be bound by all actions taken and documents executed by the Representative in connection with this Article 11, and Acquirer will be entitled to rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Company Holder in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly and The Company Holders will severally indemnify the Representative and hold him harmless the Stockholders’ Representative from and against any Damages Liability incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. The Representative may select any substitute or successor Representative (who shall be a former Company Stockholder) upon written notice to Acquirer and the consent of the holders of a majority in interest of the General Escrow Fund and the Special Escrow Fund. At any time, the Company Holders holding a majority in interest of the General Escrow Fund and the Special Escrow Fund shall have the power to substitute any former Company Stockholder (with such former Company Stockholder’s consent and upon written notice to Acquirer) as a successor Representative hereunder. Following and subject to full payment of all Awarded Damages (as defined in Section 11.8(e)) to Acquirer, on or after the Release Date (following settlement of all Pending Claims), any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Article 11 (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid by the Company Holders to the Representative on a pro rata basis based on each Company Holder’s Pro Rata Share of the General Escrow Fund, with each share of Acquirer Common Stock in the General Escrow Fund valued at the Acquirer Average Price Per Share.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Concur Technologies Inc)

Appointment of Representative. (a) Each of the Shareholders hereby appoints Marshall B. Payne as such Xxxxxxxxxxx'x xxclusive agent to act on such Shareholder's behalf with respect to any and all claims arising under this Agreement. In order such representative capacity, Marshall B. Payne or any pexxxx xxx xxxxl succeed him in such representative capacity is sometimes referred to efficiently administer in this Agreement as the transactions contemplated hereby"Representative." The Representative shall take, including and the defense and/or settlement Shareholders agree that the Representative shall take, any and all actions which such Representative believes are necessary or appropriate under this Agreement for and on behalf of any the Shareholders, as fully as if the Shareholders were acting on their own behalf, including, without limitation, defending, consenting to, compromising or settling all claims for Parent Damages or Shareholder Damages, conducting negotiations with Parent and its representatives regarding such claims, taking any and all actions specified in or contemplated by Article XII of this Agreement and engaging counsel, accountants or other representatives in connection with the foregoing matters provided however, on any matter for which a Shareholder is solely liable, such as a breach of Article V, such Shareholder may elect to represent himself or herself alone, outside this Section 12.01(g). Parent shall have the Stockholders may right to rely upon all actions taken or omitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, all of which actions or omissions shall be legally binding upon each of the Stockholders hereby agree Shareholders. In the event of a dispute among the Shareholders with respect to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders Representative on the Shareholders' behalf, the Representative shall be fully entitled to act as directed by the Shareholders who received a majority of the Parent Common Stock included in the Merger Consideration and such action of the Representative shall be binding on all Shareholders. (i) Each Shareholder hereby authorizes and empowers the Representative to execute any other notice, waiver, or other direction required hereunder on behalf of such Shareholder pursuant to this Agreement. (ii) The Shareholders jointly and severally agree to indemnify and save the Representative harmless from all loss, cost, damages, fees and expenses, including, but not limited to attorney's fees and court costs suffered or incurred by the Representative in connection with this Agreement other than as a result of the Representative's own gross negligence or wilful misconduct. (iii) The Shareholders agree that the Representative shall be protected in acting upon any written notice, request, waiver, consent, certificate, receipt, opinion of counsel, authorization, power of attorney or other paper or document which the Representative in good faith believes to be (a) genuine and what it purports to be and (b) in compliance with the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders;. (iv) The Shareholders agree that the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders Shareholders for any act done anything which the Representative may do or omitted to be done hereunder while acting refrain from doing in good faith and in connection herewith, except the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without Representative's own gross negligence or willful misconduct misconduct. (v) The Representative may consult with legal counsel in the event of any dispute or question as to the construction of any of the provisions hereof or the Representative's duties hereunder, and the Representative shall incur no liability and shall be fully protected in acting in accordance with this Agreement and the reasonable opinion and instructions of such counsel. (vi) The Representative's duties are not intended to create any fiduciary or other duty on the part of the Stockholders’ Representative and arising out of with respect to the Shareholders. The Representatives has no implied duties to the Shareholders. (vii) The Shareholders shall be responsible for all costs or in connection with the acceptance or administration expenses of the Stockholders’ Representative’s duties hereunder.

Appears in 1 contract

Samples: Merger Agreement (Yale Industrial Products Inc)

Appointment of Representative. Each Company Noteholder has approved or will approve the designation of and designates Xxxx Xxxx as the representative of the Company Noteholders and as the attorney-in-fact and agent for and on behalf of each Company Noteholder (athe “Representative”) In order with respect to efficiently administer claims for indemnification pursuant to this Article 11 and the transactions contemplated hereby, including taking by the defense and/or settlement Representative of any claims for which and all actions and the Stockholders may making of any decisions required or permitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, including the Stockholders hereby exercise of the power to: (a) agree to, negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, any claim for indemnification pursuant to this Article 11; (b) arbitrate, resolve, settle or compromise any claim for indemnification made pursuant to this Article 11; and (c) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Company Noteholder with respect to the appointment disposition, settlement or other handling of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“)all claims for indemnification pursuant to this Article 11 and all rights or obligations arising under this Article 11. The Stockholders’ Representative is hereby authorized to take any Company Noteholders will be bound by all actions taken and all action as is contemplated to be taken documents executed by the Stockholders by Representative in connection with this Article 11, and the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent Indemnified Persons will be entitled to the entry of rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Company Noteholder in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly Company Noteholder will severally, and severally not jointly, on a pro rata basis based on such Company Noteholder’s Pro Rata Share, indemnify and hold harmless the Stockholders’ Representative from and against any Damages Liability incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Article 11 (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid directly by the Company Noteholders to the Representative on a pro rata basis based on each Company Noteholder’s Pro Rata Share.

Appears in 1 contract

Samples: Merger Agreement (Kana Software Inc)

Appointment of Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders The BG Media Related Investors hereby agree to the appointment of Xxxxx X. Xxxxx irrevocably constitute and appoint BG Media as the Stockholders’ Representative its representative (the “Stockholders’ "Representative“). The Stockholders’ Representative is hereby authorized to take any ") and all action as is contemplated to be taken by its lawful agent and attorney-in-fact for the Stockholders by the terms purpose of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions performing and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with consummating the transactions contemplated by this Agreement, the Registration Rights Agreement, the Certificate of Designation, the Warrants or any other agreement, document or instrument entered into in connection herewith or therewith (the "TRANSACTION DOCUMENTS") and the taking of any and all actions and the making of any and all decisions hereunder and thereunder. The appointment of BG Media as the Representative is coupled with an interest and all authority hereby conferred shall be irrevocable and shall not be terminated by any or all of the BG Media Related Investors without the consent of the Representative, which consent may be withheld for any reason, and the Representative is hereby authorized and directed to perform and consummate all of the transactions contemplated by the Transaction Documents. The Corporation shall be entitled to rely on the provisions of this Section 13 in dealing with the BG Media Investors. Notwithstanding anything to the contrary contained herein, the BG Media Related Investors shall retain the right to sell, transfer or otherwise dispose of any Shares which have been registered under the Securities Act or which are freely transferable under Rule 144 of the Securities Act. Not by way of limiting the authority of the Representative, each and all of the BG Media Related Investors, for themselves and their respective heirs, executors, administrators, successors and assign, hereby authorize the Representative to: (i) waive any provision of the Transaction Documents, including conditions to Closing, which the Representative deems necessary or desirable; (ii) execute and deliver on their behalf any and all of the Transaction Documents; (iii) make and receive notices and other communications pursuant to the Transaction Documents and service of process in any legal action or other proceeding arising out of or related to the Transaction Documents or any of the transactions hereunder or thereunder; (iv) settle any dispute, claim, action, suit or proceeding arising out of or related to the Transaction Documents or any of the transactions hereunder or thereunder; (v) enter into or consent to any modification, amendment or termination of any Transaction Document; (vi) take any action under the provisions Transaction Documents, including, without limitation, exercise of this Section 3.09 shall the Warrants or conversion of any shares of Series A Preferred Stock; (vii) appoint or provide for a successor Representative; (viii) pay expenses incurred or which may be binding upon incurred by or on behalf of the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references BG Media Investors in this Agreement to a Stockholder shall mean and include connection with the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwiseTransaction Documents; and (viix) take any other action necessary or appropriate in case the judgment of the resignation or Representative for the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) accomplishment of the Shares of the Company prior to the Closingforegoing. (b) The term “Stockholders’ Any claim, action, suit or other proceeding, whether in law or equity, to enforce any right, benefit or remedy granted to the BG Media Related Investors under this Agreement may be asserted, brought, prosecuted or maintained only by the Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to any BG Media Related Investor for any acts or omissions of the Stockholders Representative in connection with its duties and obligations hereunder, except in the case of the Representative's gross negligence or willful misconduct. The BG Media Related Investors, jointly and severally, agree to indemnify and hold the Representative harmless as to any liability incurred by it to any person by reason of its having accepted the same or in carrying out any of the terms hereof, and to reimburse the Representative for all of its costs and expenses, including, among other things, reasonable attorneys' fees and costs, incurred by reason of any matter as to which an indemnity is paid under this Section 13; PROVIDED, HOWEVER, that no indemnity need be paid in the case of the Representative's gross negligence or willful misconduct. (d) The Representative is authorized and empowered to construe the Transaction Documents and his reasonable construction made in good faith shall be conclusive and binding upon the BG Media Related Investors and upon all parties thereto. The Representative shall always be protected and free from liability in acting upon any notice, request, consent, certificate, declaration, fax, telegram, telex, guarantee, affidavit or other paper or document or signature believed by it to be genuine and to have been signed by the proper party or parties or by the party or parties purporting to have signed the same. The Representative shall not be liable for any error of judgment or for any act done or omitted to be done hereunder while acting omitted, or for any mistake of fact or law or for anything which it may do or refrain from doing in good faith and in faith, nor shall the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless Representative have any accountability hereunder, except for actual losses, if any, suffered by the Stockholders’ Representative from and against any Damages incurred without BG Media Related Investors that are proximately caused by the Representative's own gross negligence or willful misconduct on misconduct. The Representative may consult with legal counsel and any action under this Agreement taken or suffered in good faith by the part Representative in accordance with the opinion of such counsel shall be conclusive upon the parties hereto and the Representative shall be fully protected and be subject to no liability with respect thereto. NOTWITHSTANDING ANY PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE REPRESENTATIVE BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL, LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS) EVEN IF THE REPRESENTATIVE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. This section shall survive the termination of this Agreement. (e) The Representative shall have the right to resign at any time by giving not less than 10 days' advance written notice to each of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunderBG Media Related Investors.

Appears in 1 contract

Samples: Securities Purchase Agreement (Netvoice Technologies Corp)

Appointment of Representative. (a) In order to efficiently administer Each of the transactions contemplated hereby, including Company Preferred Stockholders and Management Carve-Out Recipients approves the defense and/or settlement designation of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx and designates Xxxxxx X. Xxxxx Xxxxxx Xx. as the Stockholders’ Representative representative of the Company Preferred Stockholders and Management Carve-Out Recipients and as the attorney-in-fact and agent for and on behalf of each Company Preferred Stockholder and Management Carve-Out Recipient (the “Stockholders’ Representative“). The Stockholders’ ”) with respect to the monitoring and negotiating of the determination of Adjusted Net Liabilities under Section 2.1.3 hereof and claims for indemnification under Article 11 and the taking by the Representative is hereby authorized to take of any and all action as is contemplated actions and the making of any decisions required or permitted to be taken by the Stockholders by the terms of Representative under this Agreement, provided thatincluding the exercise of the power to: (a) authorize the release or delivery to Parent of General Escrow Funds in satisfaction of indemnity claims by Parent or any other Parent Indemnified Person pursuant to Article 11; (b) agree to, the Stockholders’ negotiate, enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (c) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article 11; (d) accept, contest or request additional information with respect to Final Adjustment Calculations; (e) engage advisors and consultants to review any Final Adjustment Calculations and such books and records of Parent or Company as Representative shall not consent or such advisors may deem necessary to make determinations with respect thereto; (f) arbitrate, mediate, litigate, negotiate, discuss or settle with respect to the entry of any judgment or enter into any settlement which affects or binds any determination of the determination of Adjusted Net Liabilities and to engage advisors to assist in such activities; (g) execute the Escrow Agreement and (h) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Company Preferred Stockholder and Management Carve-Out Recipient with respect to the disposition, settlement or other handling of all claims under Article 11 and all rights or obligations arising under Article 11. The Company Preferred Stockholders without the prior written consent of such Stockholder (which consent shall not and Management Carve-Out Recipients will be unreasonably withheld). All decisions bound by all actions taken and actions documents executed by the Stockholders’ Representative shall in connection with Article 11, and Parent will be binding upon all entitled to rely on any action or decision of the Stockholders and no Stockholder shall have Representative. In performing the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done Company Preferred Stockholder or omitted to be done hereunder while acting in good faith and Management Carve-Out Recipient in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly The Company Preferred Stockholders and Management Carve-Out Recipients shall severally indemnify the Representative and hold him harmless the Stockholders’ Representative from and against any Damages loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of Article 11 (including the hiring of legal counsel and the incurring of legal fees and costs) not reimbursed pursuant to the Escrow Agreement will be paid by the Company Preferred Stockholders and Management Carve-Out Recipients to the Representative based on each Company Preferred Stockholder’s Pro Rata Share of the Total Consideration and each Management Carve-Out Recipient’s Pro Rata Share of the Management Carve-Out Amounts.

Appears in 1 contract

Samples: Merger Agreement (Saba Software Inc)

Appointment of Representative. Each Indemnifying Person approves the designation of and designates Alta Berkeley LLP, as the representative and as the attorney-in-fact and agent for and on behalf of each Indemnifying Person (athe "Representative") In order with respect to efficiently administer claims for indemnification pursuant to this Article IX and the transactions contemplated hereby, including taking by the defense and/or settlement Representative of any claims for which and all actions and the Stockholders may making of any decisions required or permitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, including the Stockholders hereby agree exercise of the power to: (a) authorize the release to Omneon of the relevant portion of the Holdback Amount (subject to the appointment constraints set forth in Section 9.3) in satisfaction of Xxxxx X. Xxxxx as indemnification claims of any Indemnified Person pursuant to this Article IX; (b) resolve, settle or compromise, and/or comply with orders of courts with respect to, any claim for indemnification made pursuant to this Article IX; and (c) take all actions necessary in the Stockholders’ judgment of the Representative (for the “Stockholders’ Representative“)accomplishment of the foregoing. The Stockholders’ Representative is hereby authorized will have authority and power to take any act on behalf of each Indemnifying Person with respect to the disposition, settlement or other handling of all claims for indemnification pursuant to this Article IX and all action as is contemplated to rights or obligations arising under this Article IX. The Indemnifying Persons will be bound by all actions taken and documents executed by the Stockholders by Representative in connection with this Article IX, and the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent Indemnified Persons will be entitled to the entry of rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Indemnifying Person in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly Indemnifying Person will severally, and severally not jointly, on a pro rata basis based on such Person's Pro Rata Share, indemnify and hold harmless the Stockholders’ Representative from and against any Damages Liability incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Article IX (including the hiring of legal counsel and the incurring of legal fees and costs) will be paid directly by the Indemnifying Persons to the Representative on a pro rata basis based on each such Person's Pro Rata Share, and no such amounts will be paid from the Holdback Amount.

Appears in 1 contract

Samples: Share Contribution Agreement (Omneon, Inc.)

Appointment of Representative. Each Principal Stockholder (aother than Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx) In order to efficiently administer hereby appoints Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P. (the transactions contemplated hereby"Representative") the attorney-in-fact of such Principal Stockholder, with full power and authority, including power of substitution, acting in the defense and/or settlement name of and for and on behalf of such Principal Stockholder to amend or waive any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms provision of this Agreement, provided that, the Stockholders’ Representative shall not consent to terminate this Agreement pursuant to the entry provisions of Section7, in its sole discretion, and to do all other things and to take all other actions under or related to this Agreement which, in its discretion, it may consider necessary or proper to effectuate the transactions contemplated hereunder and to resolve any judgment or dispute with APAC over any aspect of this Agreement and on behalf of such Stockholder, to enter into any settlement which affects or binds agreement to effectuate any of the Stockholders without foregoing which shall have the prior written consent effect of binding such Stockholder (as if such Stockholder had personally entered into such agreement; provided, however, that all actions taken or decisions made by the Representative on behalf of the Stockholders shall be taken or made in a manner which consent is ratably and equitably amongst all Stockholders. This appointment and power of attorney shall be deemed as coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be unreasonably withheld). All decisions and actions subject to termination by operation of law, whether by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to objectdeath, dissentincapacity, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreementliquidation, or dissolution of any Stockholder or the occurrence of any other actions taken by the Stockholders’ Representative hereunderevent or events, and no party hereunder shall have any cause the Representative may not terminate this power of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders attorney with respect to any matter referred Stockholder or such Stockholder's successors or assigns without the consent of APAC. Each Principal Stockholder (other than Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx) agrees to hereinhold the Representative harmless from any and all loss, damage, or liability and expenses (including legal fees) which such Stockholder may sustain as a result of any action taken in good faith by the Representative. In the event this Agreement is terminated pursuant to Section7 prior to Closing, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions appointment contemplated by this Agreement; (vSection2(g) shall immediately terminate and the provisions of this Section 3.09 Representative shall be binding upon the executors, heirs, legal representatives, successors promptly return such certificates and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors related stock powers to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 1 contract

Samples: Merger Agreement (Apac Teleservices Inc)

Appointment of Representative. The Principal Shareholders hereby appoint Xxxxxxx Xxxxxx or his duly appointed representative to serve as the Principal Shareholders' agent and attorney-in-fact (a) In order the "Representative"), with full power and authority (including power of substitution), in the name of and for and on behalf of each of the Principal Shareholders, or in its own name as Representative, to efficiently administer take all actions required or permitted under the Escrow Agreement and in connection with the transactions contemplated herebythereby, including the defense and/or settlement giving and receiving of any claims for which all accountings, reports, notices and consents and the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreementsigning of all certificates, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“)notices, instructions and other documents and making all determinations hereunder and thereunder. The Stockholders’ Representative is authority conferred hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to termination by the Principal Shareholders (or any of them), or by operation of law, whether by the death or incapacity of the Principal Shareholders, or the occurrence of any other event. If any Principal Shareholder should die or become incapacitated or if any other such event should occur, any action taken by the Representative shall be enforceable notwithstanding as valid as if such death or incapacity, termination or other event had not occurred, regardless of whether or not the Representative or any rights other party hereto or remedies that to any Stockholder other agreement contemplated hereby shall have received notice of such death, incapacity, termination or other event. Any notice given to the Representative shall constitute effective notice to each of the Principal Shareholders, and any other party to the Escrow Agreement or any other Person may rely on any notice, consent, election or other communication received from the Representative as if such notice, consent, election or other communication had been received from each of the Principal Shareholders. With respect to all matters relating to the Principal Shareholders arising under the Escrow Agreement, Xybernaut and the escrow agent under the Escrow Agreement shall be required to deal only with the Representative, and the decision of the Representative with respect to any matter shall be binding on all of the Principal Shareholders. The Representative may rely on any notice, instruction, certificate or other instrument which it believes to be genuine and to have been signed or presented by a proper person or persons. The Principal Shareholders hereby agree to bear the reasonable charges of the Representative, including reimbursement for out-of-pocket expenses and other costs, and such attorneys' fees, expenses and other costs as may be incurred by the Representative in connection with the transactions contemplated by this Agreement; (v) administration of the provisions of this Section 3.09 the Escrow Agreement and the transactions contemplated thereby. The Representative shall have no duties or responsibilities except those expressly set forth in the Escrow Agreement. The Representative shall be binding upon held harmless by the executorsPrincipal Shareholders from any liability, heirsloss, legal representativesclaim, successors demand or expense (including attorney's fees and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (viexpenses) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration performance of its obligations in accordance with the Escrow Agreement, except for any of the Stockholders’ foregoing arising out of the gross negligence or willful misconduct of the Representative’s duties hereunder. The foregoing provision shall survive the resignation or substitution of the Representative or the termination of this Agreement and/or the Escrow Agreement.

Appears in 1 contract

Samples: Merger Agreement (Xybernaut Corp)

Appointment of Representative. Upon approval of the Merger by the Stockholders, such Stockholders, with the exception of SWIB, which, unless it otherwise agrees in writing, shall continue to act on its own behalf, shall have been deemed to appoint Xxxxxx X. Xxxxx, Xx., Esq., as their agent and attorney-in-fact (a) In order to efficiently administer the transactions contemplated hereby"Stockholders' Representative"), with full power and authority (including the defense and/or settlement power of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to substitution), except as otherwise expressly provided in this Agreement, in the Stockholders hereby agree name of and for and on behalf of such Stockholders, or in his own name as Stockholders' Representative, to take all actions required or permitted under this Agreement and the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative Indemnification and Escrow Agreement (the “Stockholders’ Representative“including giving and receiving all accountings, reports, notices and consents). The Stockholders' Representative is hereby authorized to take any may engage advisors, including attorneys and all action accountants, as is contemplated to be taken by the Stockholders by the terms of this Agreementit deems reasonable, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without with the prior written consent of SWIB, and the costs and expenses of such Stockholder (which consent advisors shall not be unreasonably withheld). All decisions and actions borne by the Stockholders’ Representative . The authority conferred under this Section 2.8 shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to termination by the Stockholders or any of them, or by operation of law, whether by the death or incapacity of any Stockholder, the termination of any trust or estate or the occurrence of any other event. If any Stockholder should die or become incapacitated, if any trust or estate should terminate or if any other such event should occur, any action taken by the Stockholders' Representative pursuant to this Section 2.8 shall be enforceable notwithstanding any rights as valid as if such death or remedies that any Stockholder may incapacity, termination or other event had not occurred, regardless of whether or not the Stockholders' Representative, TRK or the Surviving Corporation shall have in connection with received notice of such death, incapacity, termination or other event. Any notice given to the transactions contemplated by this Agreement; (v) the provisions of this Stockholders' Representative pursuant to Section 3.09 13.3 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholderconstitute effective notice to all Stockholders other than SWIB, and any references in other party to this Agreement to a Stockholder shall mean and include the successors to or any other Person may rely on any notice, consent, election or other communication received from the Stockholders’ rights hereunder' Representative as if such notice, whether pursuant to testamentary dispositionconsent, the laws of descent and distribution election or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by other communication had been received from all Stockholders holding more other than fifty percent (50%) of the Shares of the Company prior to the ClosingSWIB. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 1 contract

Samples: Merger Agreement (Omniquip International Inc)

Appointment of Representative. (a) In order Each Stockholder hereby appoints ----------------------------- Xxxxxx Xxxxxxxxxxx as its exclusive agent to efficiently administer act on its behalf with respect to all of the transactions contemplated herebyunder this Agreement, including without limitation, the defense and/or settlement Registration Rights Agreement, the Escrow Agreement and any and all Stockholder Indemnity Claims and any and all Xxxxxx Indemnity Claims ("Claim" or "Claims") arising under this Agreement, or such other representative as may be hereafter appointed by a majority in interest of the Stockholders. Such agent is hereinafter referred to as the "Representative." The -------------- Representative shall take, and each Stockholder agrees that the Representative shall take, any claims for and all actions which the Stockholders may be Representative believes are necessary or appropriate under this Agreement for and on behalf of each Stockholder, as fully as if such Stockholder were acting on his own behalf, including, without limitation, executing on their behalf all documents required to indemnify close this Agreement, asserting Stockholder Indemnity Claims against Xxxxxx, defending all Xxxxxx Indemnity Claims, consenting to, compromising or settling all Claims, conducting negotiations with Xxxxxx and its representatives regarding such Claims, dealing with Xxxxxx and the Parent Indemnified Parties Escrow Agent under the Escrow Agreement referred to in Section 11.7(a) below with respect to all matters arising under the Escrow Agreement, taking any and all other actions specified in or contemplated by this Agreement and engaging counsel, accountants or other representatives in connection with the foregoing matters. Xxxxxx shall have the right to rely upon all actions taken or omitted to be taken by the Representative pursuant to this Agreement, the Stockholders hereby agree to the appointment all of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment which actions or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative omissions shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and legally binding upon the Stockholders; (iv) the provisions of . The Representative, acting pursuant to this Section 3.09 are irrevocable and coupled with an interest11.3, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders any Stockholder for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or omission, except in connection with any act or omission that was the acceptance or administration result of the Stockholders’ Representative’s duties hereunder's bad faith or gross negligence.

Appears in 1 contract

Samples: Merger Agreement (Snyder Communications Inc)

Appointment of Representative. Each Seller (aother than Pentland) In order hereby appoints Heritage Partners Management Company, LLP, and Heritage Partners Management Company, LLP hereby accepts such appointment, as the “Representative.” The Representative shall, and shall have full power and authority to, act on behalf of the Sellers (other than Pentland) in connection with all matters relating to efficiently administer this Agreement, including, without limitation, to negotiate, execute and deliver all amendments, modifications and waivers to this Agreement or any other agreement, document or instrument contemplated by this Agreement except for those certificates required to be delivered pursuant to Section 9.3(a), provided, however, that if the transactions contemplated herebyeffect of any such amendment, including modification or waiver on the defense Sellers (other than Heritage) is different in any material and adverse respect from the effect on Heritage, then the prior written consent of a majority-in-interest of such adversely affected Sellers, other than Pentland (determined based upon the number of Units sold, directly or indirectly, by such Sellers to Buyer) shall also be required for such amendment, modification or waiver. The Representative shall also be authorized to take all actions on behalf of the Sellers in connection with any claims under Article X of this Agreement (other than claims against Pentland, or against an individual Seller), to initiate, prosecute, defend and/or settlement settle such claims, and to make or cause to be made payments in respect of any claims brought against the Sellers (other than Pentland) from the Escrow Funds (to the extent provided for which in the Stockholders Escrow Agreements) or from amounts retained by the Representative under this Agreement. The Representative will not receive a fee for serving as the agent of the Sellers (other than Pentland) hereunder. The Representative shall be entitled to engage counsel and other advisors, and the reasonable fees and expenses of such counsel and advisors may be required paid from the Escrow Funds (to indemnify the Parent Indemnified Parties extent provided for in the Escrow Agreements) or from amounts retained by it pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of provided, however, that unless otherwise specifically provided for in this Agreement, provided that, the Stockholders’ Representative Buyer shall not consent to have any obligation or liability for such fees and expenses, and provided further, that such fees and expenses may not be paid from the entry of any judgment or enter into any settlement which affects or binds any portion of the Stockholders without the prior written consent Escrow Funds representing amounts held to secure indemnification obligations of such Stockholder (which consent shall not be unreasonably withheld)Pentland. All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders any Seller for any act done or omitted action taken by it pursuant to be done hereunder while acting in good faith this Agreement, and in the exercise of reasonable judgment. Each Stockholder agrees to Sellers (other than Pentland) shall jointly and severally indemnify and hold the Representative harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and Losses (as hereinafter defined) arising out of it serving as agent hereunder, except in each case if and to the extent the Representative has engaged in bad faith or willful misconduct. The Parties acknowledge that the Representative is serving in connection with the acceptance or administration that capacity solely for purposes of administrative convenience, and is not personally liable for any of the Stockholders’ obligations of the Sellers hereunder, and Buyer agrees that it will not look to the personal assets of the Representative for the satisfaction of any obligations of the Sellers (or any of them). By giving notice to the Representative in the manner provided by Section 11.1, Buyer shall be deemed to have given notice to all of the Sellers (other than Pentland) and any action taken by the Representative may be considered and relied upon by Buyer to be the action of each Seller (other than Pentland) for whom such action was taken for all purposes of this Agreement. The Representative may resign as agent of the Sellers hereunder upon at least ten (10) days prior written notice to the Sellers. The Sellers (other than Pentland, but including Heritage) who were the beneficial owners of a majority of the Purchased Securities sold to Buyer may remove and replace the Representative upon written notice to the Representative’s duties hereunder. In the event the Representative resigns or is removed and replaced by such Sellers, such Sellers will promptly notify Buyer in writing of the designation by them of a successor to act as their Representative and the address to which notices hereunder shall be sent. All rights of the Representative to indemnification hereunder shall survive the termination of this Agreement or the resignation or removal of the Representative.

Appears in 1 contract

Samples: Securities Purchase Agreement (Brown Shoe Co Inc)

Appointment of Representative. (a) In order Each of the Stockholders hereby appoints Vincxxx X. Xxxxxx xx its exclusive agent to efficiently administer act on its behalf with respect to any and all Stockholder Indemnity Claims and any and all MLC Indemnity Claims arising under this Agreement or such other representative as may be hereafter appointed by a majority in interest of the transactions contemplated herebyStockholders. Such agent is hereinafter referred to as the "Representative." The Representative shall take, including and the defense and/or settlement of Stockholders agree that the Representative shall take, any claims for and all actions which the Stockholders may Representative believes are necessary or appropriate under this Agreement for and on behalf of the Stockholders, as fully as if such parties were acting on their own behalf, including, without limitation, asserting Stockholder Indemnity Claims against MLC, defending all MLC Indemnity Claims, consenting to, compromising or settling all Stockholder Indemnity Claims and MLC Indemnity Claims, conducting negotiations with MLC and its representatives regarding such claims, dealing with MLC and the Escrow Agent under the Escrow Agreement referred to in Section 12.6(a) below with respect to all matters arising under the Escrow Agreement, taking any and all other actions specified in or contemplated by this Agreement and engaging counsel, accountants or other representatives in connection with the foregoing matters. MLC shall have the right to rely upon all actions taken or omitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, the Stockholders hereby agree to the appointment all of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment which actions or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative omissions shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and legally binding upon the Stockholders; (iv) the provisions of . The Representative, acting pursuant to this Section 3.09 are irrevocable and coupled with an interest12.3, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders any other Stockholder for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or omission, except in connection with any act or omission that was the acceptance or administration result of the Stockholders’ Representative’s duties hereunder's bad faith or gross negligence.

Appears in 1 contract

Samples: Merger Agreement (MLC Holdings Inc)

Appointment of Representative. (a) In order Each of the Stockholders hereby appoints Willxxx X. Xxxxxx xx its exclusive agent to efficiently administer act on its behalf with respect to any and all Stockholder Indemnity Claims and any and all MLC Indemnity Claims arising under this Agreement or such other representative as may be hereafter appointed by a majority in interest of the transactions contemplated herebyStockholders. Such agent is hereinafter referred to as the "Representative." The Representative shall take, including and the defense and/or settlement of Stockholders agree that the Representative shall take, any claims for and all actions which the Stockholders may Representative believes are necessary, desirable or appropriate under this Agreement for and on behalf of the Stockholders, as fully as if such parties were acting on their own behalf, including, without limitation, asserting Stockholder Indemnity Claims against MLC, defending all MLC Indemnity Claims, consenting to, compromising or settling all Stockholder Indemnity Claims and MLC Indemnity Claims, conducting negotiations with MLC and its representatives regarding such claims, dealing with MLC and the Escrow Agent under the Escrow Agreement referred to in Section 12.7(a) below with respect to all matters arising under the Escrow Agreement, taking any and all other actions specified in or contemplated by this Agreement and engaging counsel, accountants or other representatives in connection with the foregoing matters. MLC shall have the right to rely upon all actions taken or omitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, the Stockholders hereby agree to the appointment all of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take any and all action as is contemplated to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment which actions or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative omissions shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and legally binding upon the Stockholders; (iv) the provisions of . The Representative, acting pursuant to this Section 3.09 are irrevocable and coupled with an interest12.3, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders any other Stockholder for any act done or omitted to be done hereunder while acting in good faith and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or omission, except in connection with any act or omission that was the acceptance or administration result of the Stockholders’ Representative’s duties hereunder's bad faith or gross negligence.

Appears in 1 contract

Samples: Merger Agreement (MLC Holdings Inc)

Appointment of Representative. At the Closing, Sxxxxxx Xxxxx shall be appointed as the representative of the Series E Holders and Plan Participants and as the attorney-in-fact and agent for and on behalf of each Series E Holder and Plan Participant (athe “Representative”) In order with respect to efficiently administer claims for indemnification pursuant to this Article 10 and the transactions contemplated hereby, including taking by the defense and/or settlement Representative of any claims for which and all actions and the Stockholders may making of any decisions required or permitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, including the Stockholders hereby exercise of the power to: (a) authorize the release or delivery to Acquirer of the cash in the Escrow Fund in satisfaction of indemnification claims of any Indemnified Person pursuant to this Article 10; (b) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claim for indemnification pursuant to this Article 10; (c) resolve, settle or compromise any claim for indemnification made pursuant to this Article 10; and (d) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Series E Holder and Plan Participant with respect to the appointment disposition, settlement or other handling of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“)all claims for indemnification pursuant to this Article 10 and all rights or obligations arising under this Article 10. The Stockholders’ Representative is hereby authorized to take any Series E Holders and Plan Participants will be bound by all action as is contemplated to be actions taken and documents executed by the Stockholders by Representative in connection with this Article 10, and the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent Indemnified Persons will be entitled to the entry of rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done Series E Holder or omitted to be done hereunder while acting in good faith and Plan Participant in the exercise absence of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative. Any out-of-pocket costs and expenses reasonably incurred by the Representative and arising out of or in connection with actions taken by the acceptance or administration Representative pursuant to the terms of this Article 10 (including the hiring of counsel and the incurring of legal fees and costs) will be paid directly by the Series E Holders and the Plan Participants to the Representative on a pro rata basis based on such Series E Holder’s and Plan Participants Pro Rata Share of the Stockholders’ Representative’s duties hereunderDefense Amount, and no such amounts will be paid from the Escrow Fund.

Appears in 1 contract

Samples: Merger Agreement (Sonicwall Inc)

Appointment of Representative. (a) In order By execution hereof, the Shareholders, the Option Holders and the Specified Shareholders hereby designate Maxxxxx X. Xxxxxxx xs the "Representative." The Representative shall have full power to efficiently administer act on behalf of the transactions Shareholders, the Option Holders and the Specified Shareholders in the manner specified herein and in connection with all matters with respect to which action by the Representative is contemplated hereby, including the defense and/or settlement of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to by this Agreement, except that no amendment adversely affecting Penn. Corp.'s rights hereunder or altering the Stockholders hereby agree amount, type or nature of consideration payable to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Equity Holders hereunder shall be valid unless approved in writing by Penn Corp. (b) The Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to shall take any and all action as is contemplated actions required to be taken by the Stockholders by the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of the Stockholders without the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent under this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to and may take any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions action contemplated by this Agreement; (v) Agreement on behalf of the provisions of this Section 3.09 shall be binding upon Shareholders, the executors, heirs, legal representatives, successors Option Holders and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors Specified Shareholders. By giving notice to the Stockholders’ rights hereunderRepresentative in the manner provided by Section 8.1, whether pursuant to testamentary dispositionGeneral American, GAHC, GAIMCO or CAM, as the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxxmay be, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representativehave given notice to all of the Shareholders and Option Holders and the Specified Shareholder. (c) In the event that a CAM Indemnified Person gives notice to the Representative of a Third-Person Claim for which indemnification may be sought, the Representative shall have the authority to determine, in his sole judgment and in accordance with Section 7.6, whether to retain counsel (and to select that counsel) to protect the Shareholder's, the Option Holders', and the Specified Shareholders' interests, whether to assume the defense of or otherwise to control the handling of the Third-Person Claim, and to make all other decisions required to be made by the Shareholders, the Option Holders or the Specified Shareholders pursuant to Article VII of this Agreement, including, without limitation, whether to consent or withhold his 60 66 consent to any settlement or compromise of a Third-Person Claim. The Stockholders’ Representative is hereby also authorized (but not required) to seek approval of any proposed action or decision affecting the interests of the Shareholders, Option Holders or Specified Shareholders hereunder and in such event shall be authorized to act in accordance with the approval of such holders whose aggregate percentages as set forth on their respective signature pages constitute 51% or more of the indemnification obligations of such holders, provided that the Representative shall not be liable have the authority to consent to the Stockholders for any settlement of the Pending Litigation without the approval of Penn. Corp., which will not be unreasonably withheld. (d) In the event that the Representative shall resign or otherwise cease to act done or omitted as the Representative, the Representative shall be authorized to be done hereunder while acting in good faith select a replacement Representative, subject to the written approval of Shareholders, Option Holders and Specified Shareholders who hold in the exercise aggregate 51% or more of reasonable judgment. Each Stockholder agrees the total percentages set forth on the Equity Holders' signature pages (a "Majority of Interested Shareholders"), or, if the Representative shall not have selected a replacement who shall have been approved by a Majority of Interested Shareholders as aforesaid by the date the Representative ceases to jointly and severally indemnify and hold harmless act in such capacity, then a Majority of Interested Shareholders shall be authorized to select a replacement Representative by written consent. (e) The Representative shall have no liability to the Stockholders’ Representative from and against Shareholders, the Option Holders or the Specified Shareholders with respect to any Damages incurred without action taken or not taken by him under this Agreement except for his own gross negligence or willful misconduct on misconduct. The Representative may act in reliance upon the part advice of the Stockholders’ Representative and arising out of or counsel satisfactory to him in reference to any matter in connection with this Agreement and shall not incur any liability for any action taken in good faith in accordance with such advice. (f) Any action taken by the acceptance or administration Representative may be considered by General American, GAHC, GAIMCO and CAM to be the action of each Shareholder, Option Holder and/or the Stockholders’ Representative’s duties hereunderSpecified Shareholder for whom such action was taken for all purposes of this Agreement.

Appears in 1 contract

Samples: Contribution Agreement (Conning Corp)

Appointment of Representative. Seller and each of the Stockholders hereby appoints Richard Maheu (athe "REPRESENTATIVE") In order the attorney-in-fact of Sellex xxx xxxx Xxockholder, with full power and authority, including power of substitution, acting in the name of and for and on behalf of Seller and each Stockholder (i) to efficiently administer amend or waive any provision of this Agreement, (ii) to terminate this Agreement pursuant to the provisions hereof, (iii) to do all other things and to take all other action under or related to this Agreement that the Representative may consider necessary or proper to effectuate the transactions contemplated hereby, including the defense and/or settlement of (iv) to resolve any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized to take dispute with Buyer over any and all action as is contemplated to be taken by the Stockholders by the terms aspect of this Agreement, provided that, the Stockholders’ Representative shall not consent Agreement and (v) on behalf of Seller and any Stockholder to the entry of any judgment or enter into any settlement which affects or binds agreement to effectuate any of the Stockholders without foregoing which shall have the prior written consent effect of binding Seller and each Stockholder as if Seller and each Stockholder had personally entered into such Stockholder (which consent an agreement. The Representative shall have the exclusive right, power and authority, on behalf of Seller and the Stockholders, to pursue, defend, and settle any matters set forth in this Agreement and to do all things and to take all other actions Representative may consider necessary or proper to resolve any indemnification claims after the Closing. This appointment and power of attorney shall be deemed as coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be unreasonably withheld). All decisions and actions subject to termination by operation of law, whether by the Stockholders’ Representative shall be binding upon all death or incapacity or liquidation or dissolution of Seller and each Stockholder or the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution occurrence of this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by event or events and the Stockholders’ Representative hereunder, and no party hereunder shall have any cause may not terminate this power of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders attorney with respect to any matter referred to herein, the Parent shall be entitled to give such notice to of Seller's or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions any of the Stockholders’ Representative ' or such Seller's or the Stockholder's successors or assigns without the consent of Buyer. Upon the death, disability or resignation of the Representative, his successor shall be finalWalter F. Senney, conclusive Jr. Any notice given to the Representative pursuxxx xx xxxx Xxxxxxxxx or any other agreements contemplated hereby shall constitute effective notice to Seller and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in other party to this Agreement to a Stockholder shall mean or any other person may rely on any notice, consent, election or other communication received from the Representative as if such notice, consent, election or other communication had been received from Seller and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent . Seller and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall not be liable to the Stockholders for agree to hold the Representative harmless from any act done and all loss, damage or omitted to be done hereunder while acting liability and expenses (including legal fees) which such Representative may sustain as a result of any action taken in good faith and in by the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Young Innovations Inc)

Appointment of Representative. The approval of this Agreement by the Xennex Stockholders shall constitute the following actions binding upon the Xennex Stockholders: (a) In order the irrevocable authorization, direction and appointment of Xxxxxxx Xxxxxx as stockholder representative, and not personally (the Representative), as the sole and exclusive agent, attorney-in-fact and representative of each Xennex Stockholder and their respective heirs, representatives and successors in respect of the Escrow Agreement and the Escrow Shares; (b) the approval and authorization for all of the arrangements relating thereto, including: (i) the execution, delivery and performance of the Escrow Agreement by the Representative, (ii) the receipt and distribution of the Escrow Shares pursuant to efficiently administer the transactions contemplated hereby, including terms hereof and of the defense and/or settlement of Escrow Agreement; (iii) the making any claims for and all determinations which the Stockholders may be required or permitted to indemnify be taken by the Parent Indemnified Parties Representative or the Xennex Stockholders; and (iv) the exercise of such rights, power and authority as are incidental to the foregoing; and (c) the initial Representative shall indicate in writing his acceptance of such appointment, effective upon approval by the Xennex Stockholders of the Merger, and his agreement to then be bound by the terms of this Agreement as they relate to the Representative and the duties and responsibilities thereof, by executing this Agreement for such limited purpose in the space provided on the signature pages hereof. Any actions, exercises of rights, power or authority and any decisions or determinations made by the Representative within the scope of his appointment pursuant to this Agreement, the Stockholders hereby agree shall be absolutely and irrevocably binding on each Xennex Stockholder as if each such Person personally had taken such action, exercised such rights, power or authority or made such decision or determination in such Person’s individual capacity, but in any event only to the appointment extent of Xxxxx X. Xxxxx the rights of each such Xennex Stockholder in its capacity as a Xennex Stockholder holding Xennex Shares or rights in and to the receipt or payment of the Merger Consideration pursuant hereto. (d) The Representative shall not incur any liability with respect to any action taken or suffered by him in reliance upon any note, direction, instruction, consent, statement or other document believed by the Representative to be genuinely and duly authorized, nor for other action or inaction as the Stockholders’ Representative, excepting only the willful misconduct or gross negligence of the Representative. If and in the event that the immediately preceding sentence shall not be given effect for any reason, the Representative shall be indemnified and held harmless by the Xennex Stockholders to the extent of their respective pro rata interests in the Escrow Shares (subject in any event to the “Stockholders’ Representative“claims of BioTime). The Stockholders’ Representative is hereby authorized to take , against and from any and all action as is contemplated debts, obligations and other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or whether known or unknown, or due or to be taken become due or otherwise), monetary damages, fines, fees, penalties, interest obligations, deficiencies, losses and expenses (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation) incurred or suffered by the Stockholders by Representative in connection with or in furtherance of his performance as such hereunder, except to the terms extent resulting from, relating to or in respect of this Agreement, provided that, any actions constituting only the Stockholders’ willful misconduct or gross negligence of the Representative. The Representative shall not consent have recourse to the entry of any judgment or enter into any settlement which affects or binds any Escrow Shares in each case to the extent of the Xennex Stockholders without interest therein, to satisfy any claims or obligations in respect of indemnity as herein above provided, and the prior written consent Xennex Stockholders shall upon the approval hereof be deemed to have assented thereto. (e) In the event of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ death, physical or mental incapacity or resignation of the Representative, a successor Representative shall be binding upon all elected by a majority vote of the Xennex Stockholders and no Stockholder who have any then-existing indemnity obligations or payment rights (whether contingent or absolute) hereunder, with each such holder (or his successor or assign) to be given a vote equal to the number of Xennex Shares held by such holder immediately prior to the Effective Time pursuant to a procedure to be mutually agreed upon among such holders. Pending the election of a successor Representative, such holder holding the largest number of Xennex Shares prior to the Effective Time shall have the right to object, dissent, protest act as the interim Representative (or otherwise contest the same. By their execution of this Agreementif he declines, the Stockholders agree that: (i) next largest and successively thereafter). Each interim and successor Representative shall have all the Parent shall be able to rely exclusively on power, authority, rights and privileges conferred by this Agreement upon the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunderinitial Representative, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representativeas used herein shall be deemed to include a any interim or successor representative. (c) The Stockholders’ Representative. Any successor Representative shall not be liable to the Stockholders for any act done or omitted indicate in writing his acceptance of such appointment and his agreement to be done hereunder while acting in good faith bound by the terms of this Agreement and in the exercise of reasonable judgment. Each Stockholder agrees to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunder.Escrow Agreement

Appears in 1 contract

Samples: Merger Agreement (Biotime Inc)

Appointment of Representative. (a) In order to efficiently administer the transactions contemplated hereby, including the defense and/or settlement Each of any claims for which the Stockholders may be required to indemnify the Parent Indemnified Parties pursuant to this Agreement, the Stockholders hereby agree irrevocably constitutes and appoints Xxxxx Xxxxxxx as such Stockholder's true and lawful agent and attorney-in-fact to the appointment of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“). The Stockholders’ Representative is hereby authorized act on such Stockholder's behalf with respect to take any and all action as is contemplated Indemnity Claims. In such representative capacity, Xxxxx Xxxxxxx, or any person who shall succeed in such representative capacity pursuant to be taken by the Stockholders by the terms of this Agreement, provided thatis referred to in this Agreement as the "Representative". The Representative shall take, and the Stockholders agree that the Representative shall take, any and all actions which he believes are necessary or appropriate under this Agreement for and on behalf of the Stockholders’ Representative shall not consent to the entry of any judgment or enter into any settlement which affects or binds any of , as fully as if the Stockholders were acting on their own behalf, including, without limitation, defending all Indemnity Claims, consenting to, compromising or settling all Indemnity Claims, conducting negotiations with Parent and its representatives regarding such claims, dealing with Parent and the prior written consent of such Stockholder (which consent shall not be unreasonably withheld)Escrow Agent under this Agreement with respect to all matters arising under this Agreement, taking any and all other actions specified in or contemplated by this Agreement and engaging counsel, accountants or other representatives in connection with the foregoing matters. All decisions Parent and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder Escrow Agent shall have the right to object, dissent, protest rely upon all actions taken or otherwise contest the same. By their execution of this Agreement, the Stockholders agree that: (i) the Parent shall omitted to be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification taken by the Parent Representative pursuant to this Agreement, all of which actions or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder omissions shall have any cause of action against the Parent in reliance be legally binding upon the instructions or decisions each of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ . The Representative shall be finalhave reasonable access to information of and concerning any Indemnity Claim and which is in the possession, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights custody or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares control of the Company prior and the reasonable assistance of the Company's officers and employees for purposes of performing the Representative's duties under this Agreement and exercising its rights under this Agreement, including for the purpose of evaluating any Indemnity Claim against the Escrow Fund by Parent; provided that the Representative shall treat confidentially and not disclose any nonpublic information from or concerning any Indemnity Claim to anyone (except to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed 's attorneys, accountants and other advisers, to include a successor representative. (c) The Stockholders’ Representative shall not be liable former stockholders of the Company whose shares are held in escrow pursuant to this Agreement, to the Stockholders for any act done or omitted arbitrators appointed to be done hereunder while acting in good faith resolve disputes pursuant to this Agreement, and in the exercise of reasonable judgment. Each Stockholder agrees on a need- to-know basis to jointly and severally indemnify and hold harmless the Stockholders’ Representative from and against any Damages incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s duties hereunderother individuals who agree to keep such information confidential).

Appears in 1 contract

Samples: Indemnification and Escrow Agreement (Lycos Inc)

Appointment of Representative. Each Effective Time Holder approves the designation of and designates Mxxx Xxxxxx as the representative of the Effective Time Holders and as the attorney-in-fact and agent for and on behalf of each Effective Time Holder (asuch person and any successor, the “Representative”) In order with respect to efficiently administer claims for indemnification pursuant to this Article 11 and the transactions contemplated hereby, including taking by the defense and/or settlement Representative of any claims for which and all actions and the Stockholders may making of any decisions required or permitted to be required to indemnify taken by the Parent Indemnified Parties Representative pursuant to this Agreement, including the Stockholders hereby exercise of the power to: (a) authorize the release or delivery to Acquirer of Escrow Cash from the Escrow Fund in satisfaction of indemnification claims of any Indemnified Person pursuant to this Article 11; (b) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to, any claim for indemnification pursuant to this Article 11; (c) resolve, settle or compromise any claim for indemnification made pursuant to this Article 11; and (d) take all actions necessary in the judgment of the Representative for the accomplishment of the foregoing. The Representative will have authority and power to act on behalf of each Effective Time Holder with respect to the appointment disposition, settlement or other handling of Xxxxx X. Xxxxx as the Stockholders’ Representative (the “Stockholders’ Representative“)all claims for indemnification pursuant to this Article 11 and all rights or obligations arising under this Article 11. The Stockholders’ Representative is hereby authorized to take any Effective Time Holders will be bound by all actions taken and all action as is contemplated to be taken documents executed by the Stockholders by Representative in connection with this Article 11, and the terms of this Agreement, provided that, the Stockholders’ Representative shall not consent Indemnified Persons will be entitled to the entry of rely on any judgment action or enter into any settlement which affects or binds any decision of the Stockholders without Representative. In performing the prior written consent of such Stockholder (which consent shall not be unreasonably withheld). All decisions and actions by the Stockholders’ Representative shall be binding upon all of the Stockholders and no Stockholder shall have the right to object, dissent, protest or otherwise contest the same. By their execution of functions specified in this Agreement, the Stockholders agree that: (i) the Parent shall be able to rely exclusively on the instructions and decisions of the Stockholders’ Representative as to the settlement of claims for indemnification by the Parent pursuant to this Agreement, or any other actions taken by the Stockholders’ Representative hereunder, and no party hereunder shall have any cause of action against the Parent in reliance upon the instructions or decisions of the Stockholders’ Representative; (ii) to the extent this Agreement requires that Parent give notice to or seek the consent of Stockholders with respect to any matter referred to herein, the Parent shall be entitled to give such notice to or seek such consent from the Stockholders’ Representative; (iii) all actions, decisions and instructions of the Stockholders’ Representative shall be final, conclusive and binding upon the Stockholders; (iv) the provisions of this Section 3.09 are irrevocable and coupled with an interest, and shall be enforceable notwithstanding any rights or remedies that any Stockholder may have in connection with the transactions contemplated by this Agreement; (v) the provisions of this Section 3.09 shall be binding upon the executors, heirs, legal representatives, successors and assigns of each Stockholder, and any references in this Agreement to a Stockholder shall mean and include the successors to the Stockholders’ rights hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution or otherwise; and (vi) in case of the resignation or the death or inability to act of Xxxxx X. Xxxxx, a successor shall be named by Stockholders holding more than fifty percent (50%) of the Shares of the Company prior to the Closing. (b) The term “Stockholders’ Representative“ as used herein shall be deemed to include a successor representative. (c) The Stockholders’ Representative shall will not be liable to the Stockholders for any act done or omitted to be done hereunder while acting in good faith and Effective Time Holder in the exercise absence of reasonable judgmentgross negligence or willful misconduct on the part of the Representative. Each Stockholder agrees to jointly Effective Time Holder will severally, and severally not jointly, on a pro rata basis based on such Effective Time Holder’s Pro Rata Share of the Escrow Fund, indemnify and hold harmless the Stockholders’ Representative from and against any Damages Liability incurred without gross negligence or willful misconduct on the part of the Stockholders’ Representative and arising out of or in connection with the acceptance or administration of the Stockholders’ Representative’s his duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Representative in connection with actions taken by the Representative pursuant to the terms of this Article 11 (including the hiring of counsel and the incurring of legal fees and costs) will be paid directly by the Effective Time Holders to the Representative on a pro rata basis based on each Effective Time Holder’s Pro Rata Share of the Escrow Fund, and no such amounts will be paid from the Escrow Fund. The person serving as the Representative may be replaced from time to time by the Effective Time Holders who held, as of immediately prior to the Effective Time, a majority of the outstanding Company Units.

Appears in 1 contract

Samples: Merger Agreement (Interwoven Inc)