Appointment of Shareholder Representative. Each holder of Shares shall, by virtue of such holder's execution and delivery of a Letter of Transmittal, be deemed to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and resubstitution, for him/her and in his/her name, place and stead, or, in the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "Shareholder Representative") to act as the representative of any and all of such holders with respect to any matter arising in connection with this Agreement and to make on behalf of any or all holders, individually and collectively, any decisions and take all actions that they would be entitled to make pursuant to this Agreement (but for the appointment of the Shareholder Representative) including any decision or action that may prejudice the rights of any holder or may have an adverse effect with respect to any holder. The Shareholder Representative shall be considered a nominee and agent of the holders of Shares. Any decision or action of the Shareholder Representative made on behalf of any or all holders of Shares shall be binding on such holders, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the Shareholder Representative, be entitled to rely upon any written notice, instruction, certificate or request of the Shareholder Representative. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to indemnify and hold harmless the Shareholder Representative from and against all obligations, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Representative, or the failure to exercise by the Shareholder Representative, of his/her powers and the performance or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct on the part of the Shareholder Representative. The Shareholder Representative shall not be liable to the holders for any action taken or omitted by the Shareholder Representative in good faith under this Agreement, except for gross negligence or willful misconduct.
Appears in 1 contract
Appointment of Shareholder Representative. Each holder of Shares shall, by By virtue of the adoption of this Agreement and the approval of the Merger by the Company Shareholders, each Participating Rights Holder (regardless of whether or not such holder's execution Participating Rights Holder votes in favor of the adoption of the Agreement and delivery the approval of the Merger, whether at a Letter of Transmittal, meeting or by written consent in lieu thereof) shall be deemed to constitute have appointed, effective from and appoint Joanna Franyie Romanoafter the Effective Time of the Merger, xxxx xxxx xxxxx xx xxxxtitution Xxxxx Xxxxxxx and resubstitution, for him/her and in his/her name, place and stead, or, in the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held Xxxxxx Xxxxxx (each a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "Shareholder “Joint Representative"”) to act jointly as the representative of any and all of such holders with respect to any matter arising in connection with Shareholder Representative under this Agreement in accordance with the terms of this Section 2.5 and to make on behalf of any or all holdersthe Escrow Agreement. For clarity, individually and collectivelyeach Joint Representative, any decisions and take all actions that they would acting jointly, shall be entitled to make pursuant to this Agreement (but for the appointment of deemed the Shareholder Representative) including any decision , and all actions required or action that may prejudice permitted to be approved by the rights of any holder or may have an adverse effect with respect to any holder. The Shareholder Representative shall be considered deemed approved when approved by both Joint Representatives. If either Xxxxx Xxxxxxx or Xxxxxx Xxxxxx resigns, is removed or is no longer able to perform duties as a nominee Joint Representative, the remaining Joint Representative shall continue as a sole Shareholder Representative, with the authority to act alone and agent of the holders of Shares. Any decision or action to exercise all powers of the Shareholder Representative made on behalf without the approval or joint action of any another person. In the event that both Xxxxx Xxxxxxx and Xxxxxx Xxxxxx have resigned, are removed or all holders of Shares are no longer able to perform duties as Joint Representative or as sole Shareholder Representative, as the case may be, a successor Shareholder Representative shall be binding on such holdersselected from the following list, their heirsin the order specified, successors and assigns. The Buyer and Merger Sub shallto serve as the sole Shareholder Representative, with respect power to any decision or action by act alone as the Shareholder Representative: (1) Xxxxxxx Xxxxxx, be entitled (2) Xxxxxxx Xxxxxxxx and (3) Xxxx Xxxxxx. Notwithstanding anything to rely upon any written noticethe contrary in this Agreement or the Escrow Agreement: (i) unless removed, instruction, certificate or request with the consent of the Shareholder Representative. Each holder of Sharesnext enumerated successor named in the foregoing list, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to indemnify and hold harmless the an outgoing sole Shareholder Representative from and against all obligationsmay designate a successor Shareholder Representative different than such enumerated successor; (ii) if no enumerated successors remain in the foregoing list, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the an outgoing sole Shareholder Representative, unless removed, may designate a successor without the consent of any other person or Participating Rights Holder; provided, such outgoing Shareholder Representative shall use commercially reasonable efforts to provide notice of the name and address of such successor to the Participating Rights Holders representing at least three-fourths of the Escrowed Funds then in possession of the Escrow Agent. Notwithstanding the foregoing, or anything else to the contrary in the Agreement or the failure Escrow Agreement, the Participating Rights Holders entitled to exercise a majority in amount of the Escrowed Funds then in the possession of the Escrow Agent may by the written action remove a Joint Representative or sole Shareholder Representative or appoint a new Shareholder Representative, whether or not named above, or may change the order of his/her powers and the performance succession specified above. Any person appointed to replace a former Joint Representative or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct on the part of the Shareholder Representative. The sole Shareholder Representative shall not be liable execute a statement agreeing to perform the duties set forth in this Section 2.5 and such appointment shall become effective upon delivery of such statement to the holders for any action taken or omitted by Parent and the Shareholder Representative in good faith under this Agreement, except for gross negligence or willful misconductSurviving Corporation.
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Appointment of Shareholder Representative. Each holder (a) Without any further act of Shares shallany Shareholder, by virtue Xxxxxxx Xxxxxxxxxxxx or any successor to such individual appointed pursuant to this Section is hereby irrevocably appointed as agent and true and lawful attorney-in-fact for each Shareholder with full power of such holder's execution and delivery of a Letter of Transmittal, be deemed to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and substitution or resubstitution, solely for him/her the purposes set forth herein, such appointment being coupled with an interest and in his/her name, place and stead, or, in the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "irrevocable. Shareholder Representative") to Representative will act as the representative of each Shareholder, and is authorized to act on behalf of each Shareholder under this Agreement, the Escrow Agreement or any other Closing Document (other than the Non-Competition and all of such holders with respect to any matter arising Non-Solicitation Agreements and employment agreements contemplated by Section 4.2(i) and Section 4.2(j)) or in connection with this Agreement and to make on behalf any transaction contemplated herein or therein, including receipt of any notice or all holders, individually and collectively, service of process in connection with any decisions and take all actions that they would be entitled to make pursuant to claim under this Agreement (but for all of which will be deemed delivered or served upon all Shareholders upon delivery to Shareholder Representative). Each Shareholder will be bound by all actions taken by Shareholder Representative in Shareholder Representative’s capacity thereof. Shareholder Representative will, in a reasonably prompt manner, provide written notice to each Shareholder of any action taken by Shareholder Representative pursuant to the appointment authority delegated Shareholder Representative under this Section. Shareholder Representative will at all times act in Shareholder Representative’s capacity as Shareholder Representative in a manner that Shareholder Representative believes to be in the best interest of Shareholders taken as a whole. Neither Shareholder Representative nor any of Shareholder Representative’s agents or employees will be liable to any of the Shareholder Representative) including Shareholders for any decision error of judgment, or any action that may prejudice the rights of any holder taken, suffered or may have an adverse effect with respect omitted to any holder. The Shareholder Representative shall be considered a nominee and agent of the holders of Shares. Any decision or action of the Shareholder Representative made on behalf of any or all holders of Shares shall be binding on such holderstaken, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the under this Agreement as Shareholder Representative, be entitled to rely upon any written notice, instruction, certificate except in the case of his bad faith or request of the Shareholder Representativewillful misconduct. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to indemnify and hold harmless the Shareholder Representative from may consult with legal counsel, independent public accountants and against all obligations, liabilities, claims, costs, fees, expenses (including costs other experts selected by him and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Representative, or the failure to exercise by the Shareholder Representative, of his/her powers and the performance or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct on the part of the Shareholder Representative. The Shareholder Representative shall will not be liable to the holders Shareholders for any action taken or omitted to be taken in good faith by the Shareholder Representative in good faith accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, Shareholder Representative will not be required to exercise any discretion or take any action. Each Shareholder severally will indemnify and hold harmless and reimburse Shareholder Representative from and against such Shareholder’s pro rata share of any and all Liabilities, losses, damages, claims, costs, or expenses suffered or incurred by Shareholder Representative arising out of, relating to or resulting from any action taken or omitted to be taken by Shareholder Representative under this Agreement, except for gross negligence other than such Liabilities, losses, damages, claims, costs or expenses arising out of, relating to or resulting from Shareholder Representative’s bad faith or willful misconduct. In all matters relating to this Section, Shareholder Representative will be the only party entitled to assert the rights of Shareholders. Notwithstanding the following sentence, Buyer and the Escrow Agent will be entitled to rely on all statements, actions, representations and decisions of Shareholder Representative as being the binding acts of all Shareholders or any of them, notwithstanding any communication from any Shareholder to the contrary (other than communication regarding termination or replacement of Shareholder Representative pursuant to the Escrow Agreement and this Section). By executing and delivering this Agreement, each Shareholder confirms and ratifies all that Shareholder Representative will do or cause to be done in good faith as Shareholder Representative.
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Appointment of Shareholder Representative. Each holder The Shareholders hereby appoint Butnaru as his agent and attorney-in-fact, with full power and authority (including power of Shares shallsubstitution), by virtue of such holder's execution and delivery of a Letter of Transmittal, be deemed to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and resubstitution, for him/her and except as otherwise expressly provided in his/her name, place and stead, orthis Agreement, in the case name of xxx/xer and for and on behalf such Shareholder, or in such person's own name as the Shareholders Representative, to take all actions required or permitted under this Agreement (including giving and receiving all accountings, reports, notices and consents, and negotiating, entering into settlements and compromises of, and demanding arbitration and complying with orders of courts and awards of arbitrators with respect to claims under this Agreement). The authority conferred under this Section 10.3 shall be an agency coupled with an interest, and all authority conferred hereby is irrevocable and not subject to termination by the Shareholders, or any of them, or by operation of law, whether by the death or incapacity of any Shareholder, the termination of any trust or estate or the occurrence of any other event. If Butnaru dies or becomes legally incapacitated and unable to serve as the Shareholders Representative, the successor Shareholders Representative shall be designated in writing by Butnaru's estate or legal representative. If any individual Shareholder 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 Shareholders Representative pursuant to this Section 10.3 shall be as valid as if such death or incapacity, any replacement representative appointed in writing by those holders termination or other event had not occurred, regardless of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding whether or not the Closing and their respective heirs, successors and assigns (the "Shareholder Representative") to act as the representative of any and all Shareholders Representative shall have received notice of such holders with respect death, incapacity, termination or other event. Any notice given to any matter arising in connection with this Agreement and the Shareholders Representative pursuant to make on behalf of any or all holders, individually and collectively, any decisions and take all actions that they would be entitled Section 10.4 shall constitute effective notice to make pursuant the Shareholders. Any other party to this Agreement (but for or any other Person may rely on any notice, consent, election or other communication received from the appointment of the Shareholder Representative) including any decision Shareholders Representative as if such notice, consent, election or action that may prejudice the rights of any holder or may have an adverse effect with respect other communication had been received from all Shareholders. The Shareholders Representative will not be liable to any holderShareholder for any act done or omitted hereunder as Shareholders Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholder Representative shall be considered a nominee and agent of the holders of Shares. Any decision or action of the Shareholder Representative made on behalf of any or all holders of Shares shall be binding on such holders, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the Shareholder Representative, be entitled to rely upon any written notice, instruction, certificate or request of the Shareholder Representative. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to other Shareholders will severally indemnify and hold harmless the Shareholder Representative from and against all obligations, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Shareholders Representative, against any and all loss, liability or the failure to exercise by the Shareholder Representative, of his/her powers and the performance or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross expense incurred without negligence or willful misconduct bad faith on the part of the Shareholder Shareholders Representative and arising out of or in connection with the acceptance or administration of the Shareholders Representative. The Shareholder Representative shall not be liable to the holders for any action taken or omitted by the Shareholder Representative in good faith under this Agreement, except for gross negligence or willful misconduct's duties hereunder.
Appears in 1 contract
Appointment of Shareholder Representative. Each holder Elekom and the Shareholders hereby appoint Xxxx Xxxxxx, or his designated successor agreeable to Preferred Shareholders holding more than fifty percent (50%) of Shares shallthe potential liability set forth on Exhibit A, by virtue of such holder's execution and delivery of a Letter of Transmittalto serve as Shareholder Representative for all purposes pertaining to this Agreement, who shall be deemed to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and resubstitution, for him/her and in his/her name, place and stead, or, in the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "Shareholder Representative") to act as the representative of any and all of such holders with respect to any matter arising in connection with this Agreement and authorized to make on behalf of any or all holders, individually and collectively, any decisions and take all actions that they would be entitled to make pursuant to this Agreement (but for the appointment elections of the Shareholder Representative) including any decision or action Shareholders hereunder and agree that may prejudice the rights of any holder or may have an adverse effect with respect to any holder. The Shareholder Representative SFI Indemnitees shall be considered a nominee and agent of the holders of Shares. Any decision or action of the Shareholder Representative made on behalf of any or all holders of Shares shall be binding on such holders, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the Shareholder Representative, be entitled to rely upon any written noticeon all actions, instructiondecisions, certificate or request of the Shareholder Representative. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to indemnify and hold harmless the Shareholder Representative from and against all obligations, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Representative, or the failure to exercise by the Shareholder Representative, of his/her powers and the performance or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct on the part notice of the Shareholder Representative. The Shareholder Representative has been appointed by Elekom and the Shareholders as their attorney-in-fact, for the giving and receipt on their behalf of all notices, instructions and deliveries and for the taking on their behalf of all other actions under this Agreement and the Merger Agreement, to serve in such capacity until such time as SFI and the Escrow Agent have received joint written notice from all Shareholders that they have appointed a new Shareholders Representative. Accordingly, except as otherwise set forth herein and the Merger Agreement, the Shareholder Representative has unlimited authority and power to act on behalf of the Shareholders with respect to this Agreement and the disposition, settlement or other handling of all claims, rights or obligations arising hereunder, provided such actions by the Shareholder Representative are taken in good faith in the exercise of reasonable judgment. Except as otherwise set forth herein, the Shareholder shall not be liable to the holders for any action bound by all actions taken or omitted by the Shareholder Representative in good faith under connection with this Agreement, except and the Escrow Agent, Elekom and SFI shall be entitled to rely on any action or decision of the Shareholder Representative in accordance herewith. The Shareholder Representative shall be entitled to reimbursement out of the remaining amount of Escrow Funds on the Escrow Termination Date, prior to distribution of such funds, for any reasonable out-of-pocket expenses incurred by the Shareholder Representative in connection with the performance of the representation duties under this Agreement or the Merger Agreement, including, without limitation, legal fees and expenses. No bond shall be required of the Shareholders Representative, and the Shareholders Representative shall not receive compensation for his or her services. The Shareholder Representative shall not be liable for any act done or omitted hereunder as Shareholder Representative while acting in good faith and in the exercise of reasonable judgment. The Shareholders on whose behalf the Escrow Funds were contributed to the Escrow shall severally indemnify the Shareholders Representative and hold the Shareholders Representative harmless against any loss, liability or expense incurred without gross negligence or willful misconductbad faith on the part of the Shareholders Representative and arising out of or in connection with the acceptance or administration of the Shareholders Representative's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Shareholders Representative in connection with his representation of Shareholders.
Appears in 1 contract
Appointment of Shareholder Representative. Each holder of Shares shall, by virtue of such holder's execution and delivery of a Letter of Transmittal, be deemed to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and resubstitution, for him/her and in his/her name, place and stead, or, in Seller hereby designates the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "Shareholder Representative") to act Representative as the representative of all Sellers and as the attorney-in-fact and agent for and on behalf of each such Seller with respect to claims for indemnification under this Section 8 and Section 9 hereof and the taking by the Shareholder Representative of any and all actions and the making of such holders any decisions required or permitted to be taken by the Shareholder Representative under this Agreement, including, without limitation, the exercise of the power to: (a) control the defense of, 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 matter arising in connection with this Agreement and to make on behalf of any or all holders, individually and collectivelyto, any decisions claims for indemnification by Buyer under this Section 8 or Section 9 hereof; (b) arbitrate, resolve, settle or compromise any claims for indemnification by Buyer under this Section 8 or Section 9 hereof; and (c) take all actions that they would be entitled to make pursuant to this Agreement (but for necessary or appropriate in the appointment judgment of the Shareholder Representative) including any decision or action that may prejudice Representative for the rights accomplishment of any holder or may have an adverse effect with respect to any holderthe foregoing. The Shareholder Representative shall will have authority and power to act on behalf of each Seller with respect to the disposition, settlement or other handling of all claims for indemnification by Buyer under this Section 8 or Section 9 hereof. Sellers will be considered a nominee bound by all actions taken and agent of the holders of Shares. Any decision or action of documents executed by the Shareholder Representative made on behalf of any in connection with claims for indemnification by Buyer under this Section 8 or all holders of Shares shall be binding on such holdersSection 9 hereof, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the Shareholder Representative, will be entitled to rely upon on any written notice, instruction, certificate action or request decision of the Shareholder Representative. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, Seller hereby agrees severally, but not jointly, to indemnify and hold harmless the Shareholder Representative receive correspondence from and against all obligations, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Representative, or including in electronic form. In performing the failure to exercise by functions specified in this Agreement, the Shareholder RepresentativeRepresentative will not be liable to any Seller in the absence of fraud, of his/her powers and the performance or non-performance of his/her duties hereunder, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct on the part of the Shareholder Representative. The Sellers shall jointly and severally indemnify the Shareholder Representative shall not be liable to and hold the holders for Shareholder Representative harmless against any action taken loss, liability or omitted expense incurred without fraud, gross negligence or willful misconduct on the part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the Shareholder Representative’s duties hereunder. Any out-of-pocket costs and expenses reasonably incurred by the Shareholder Representative in good faith under connection with actions taken by the Shareholder Representative pursuant to the terms of this AgreementSection 8.5 (including the hiring of legal counsel and the incurring of reasonable legal fees and costs) (the “Shareholder Representative Expenses”) will be paid to the Shareholder Representative from the Shareholder Representative Expense Amount. For the avoidance of doubt, except for gross negligence while this section allows the Shareholder Representative to be paid from the Shareholder Representative Expense Amount, this does not relieve Sellers to promptly pay all of the Shareholder Representative’s fees and expenses as they are suffered or willful misconductincurred, nor does it prevent the Shareholder Representative from seeking any remedies available to it at law or otherwise. If the Shareholder Representative shall resign or be removed upon the vote of a Majority-in-Interest of Sellers, Sellers shall, upon the vote of a Majority-in-Interest of Sellers within ten (10) days after such resignation or removal, appoint a successor to the Shareholder Representative. Any such successor shall succeed the former Shareholder Representative as the Shareholder Representative hereunder.
Appears in 1 contract
Appointment of Shareholder Representative. Each holder of Shares Xxxxxx Xxxxxxxxxx (or another person designated by the Company) shall, by virtue of such holder's execution the Merger and delivery of a Letter of Transmittalthe resolutions to be adopted at the Company Shareholders Meeting, be deemed irrevocably appointed attorney-in-fact and authorized and empowered to constitute and appoint Joanna Franyie Romano, xxxx xxxx xxxxx xx xxxxtitution and resubstitutionact, for him/her and on behalf of any or all of the shareholders of the Company (with full power of substitution) in his/her nameconnection with the indemnification provisions of this Agreement as they relate to such shareholders generally, place the Escrow Agreement, the notice provisions of this Agreement and steadsuch other matters as are reasonably necessary for the consummation of the transactions contemplated hereby, or, in the case of xxx/xer death or incapacity, any replacement representative appointed in writing by those holders of Shares who held a majority of outstanding Shares (on a fully diluted basis) immediately preceding the Closing and their respective heirs, successors and assigns (the "Shareholder Representative") including to act as the representative of such shareholders to review and authorize all claims and other payments authorized or directed by the Escrow Agreement and dispute or question the accuracy thereof, to compromise on their behalf with inTEST any claims asserted thereunder and all to authorize payments to be made with respect thereto, and to take such further actions as are authorized in this Agreement. The above-named representative, as well as any subsequent representative of the shareholders of the Company appointed by such representative (or, after such representative's death or incapacity, elected by vote of holders of a majority of capital stock of the Company outstanding immediately prior to the Merger), is referred to herein as the "Shareholder Representative." The Shareholder Representative shall not be liable to any stockholder of the Company, inTEST, Newsub, the Surviving Corporation or any other person with respect to any matter arising action taken or omitted to be taken by the Shareholder Representative under or in connection with this Agreement and to make on behalf of any or all holders, individually and collectively, any decisions and take all actions that they would be entitled to make pursuant to this Agreement (but for the appointment of the Shareholder Representative) including any decision or action that may prejudice the rights of any holder or may have an adverse effect with respect to any holder. The Shareholder Representative shall be considered a nominee and agent of the holders of Shares. Any decision or action of the Shareholder Representative made on behalf of any or all holders of Shares shall be binding on such holders, their heirs, successors and assigns. The Buyer and Merger Sub shall, with respect to any decision or action by the Shareholder Representative, be entitled to rely upon any written notice, instruction, certificate or request of the Shareholder Representative. Each holder of Shares, by virtue of such holder's execution and delivery of a Letter of Transmittal, agrees severally, but not jointly, to indemnify and hold harmless the Shareholder Representative from and against all obligations, liabilities, claims, costs, fees, expenses (including costs and expenses of counsel) owed or due to any third party (including any other holder) of whatsoever nature and kind arising out of, associated with or resulting from the exercise by the Shareholder Representative, or the failure to exercise by the Shareholder RepresentativeEscrow Agreement unless such action or omission results from or arises out of fraud, of his/her powers and the performance or non-performance of his/her duties hereundergross negligence, provided that the foregoing shall be inapplicable in any case of gross negligence or willful misconduct or bad faith on the part of the Shareholder Representative. The shareholders of the Company shall severally indemnify and hold the Shareholder Representative shall not be liable to harmless against any loss, liability or expense incurred without fraud, gross negligence, willful misconduct or bad faith on the holders for part of the Shareholder Representative and arising out of or in connection with the acceptance or administration of the duties of the Shareholder Representative hereunder, including the reasonable fees and expenses of any action taken or omitted legal counsel retained by the Shareholder Representative. Each of inTEST and Newsub and each of their respective affiliates shall be entitled to rely on such appointment and treat the Shareholder Representative as the duly appointed attorney-in-fact of each shareholder of the Company. Each shareholder of the Company who votes in good faith under favor of the Merger pursuant to the terms hereof, by such vote, without any further action, and each shareholder of the Company who receives shares of inTEST Stock in connection with the Merger, by acceptance thereof and without any further action, confirms such appointment and authority and acknowledges and agrees that such appointment is irrevocable and coupled with an interest, it being understood that the willingness of inTEST and Newsub to enter into this AgreementAgreement is based, except for gross negligence or willful misconductin part, on the appointment of a representative to act on behalf of the shareholders of the Company.
Appears in 1 contract
Samples: Amended And (Intest Corp)
