Appointment of Stockholder Representative. (a) Each Stockholder hereby irrevocably appoints Shareholder Representative Services LLC as his, her or its representative (“Stockholder Representative”), as true and lawful agent and attorney-in-fact, with full power of substitution, with full power and authority to act for and on behalf of such Stockholder for all purposes of this Agreement and the Ancillary Documents, and with respect to the consummation of the transactions contemplated by this Agreement and the Ancillary Documents, agrees to be bound by the provisions of this Agreement or other such agreements and the terms of such transactions. Stockholder Representative hereby accepts such appointment. Stockholder Representative may take any and all actions that it believes are reasonably necessary or appropriate under this Agreement and the Ancillary Documents, including interpreting all of the terms and provisions of this Agreement and the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, pursuant to this Agreement, has the exclusive authority to act on his, her or its behalf in connection with this Agreement, the Ancillary Documents and other transaction documents and related matters, including (i) authorization of payments to be made by any Stockholder or Stockholder Representative under this Agreement or any Ancillary Document, (ii) directing the distribution of all payments and amounts to any Stockholder, (iii) the giving and receiving of notices to be given or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer under this Agreement or any Ancillary Document, including with respect to any adjustments to the Purchase Price pursuant to Section 2.5, or take any actions and exercise such other power, rights and authority as set forth herein, (v) the right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Document, and related documents, (vi) the right to waive any condition or provision of this Agreement or any Ancillary Document and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified in or contemplated by this Agreement or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement shall be binding upon all Stockholders, and no Stockholder shall have any right to object, dissent, protest or otherwise contest the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all of the Stockholders. The Stockholder Representative may resign at any time upon 30 day’s advance written notice. Upon the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this Agreement. (b) Stockholder Representative shall have no duties to the Stockholders or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement. (c) Upon the Closing, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Stockholder Representative Reserve Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve Fund. (d) Any action taken by Stockholder Representative pursuant to the authority granted in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents. (e) Buyer shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by, and the actions of, or the failure to act by, Stockholder Representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out of or related to the performance of, or failure to perform by, Stockholder Representative of its obligations set forth in this Agreement, as applicable.
Appears in 1 contract
Samples: Business Combination Agreement (Legacy Acquisition Corp.)
Appointment of Stockholder Representative. (a) Each Stockholder hereby irrevocably appoints Shareholder Representative Services LLC as his, her or its representative Xxxx Xxxxxxxxx (“the "Stockholder Representative”)") is hereby appointed as the stockholder representative of the holders of the Shares. The Stockholder Representative shall have the authority, as true and lawful agent and attorney-in-fact, with full power of substitution, with full power and authority to act for and on behalf of the holders of the Shares (except for such holders, if any, who have perfected their appraisal rights under the DGCL), to take such actions and exercise such discretion as are required of the Stockholder for all purposes Representative pursuant to the terms of this Agreement and any related document or instrument (and any such actions shall be binding on each holder of Shares) including without limitation the Ancillary Documentsfollowing:
(i) to receive, hold, and deliver to the Exchange Agent the Certificates and any other documents relating thereto on behalf of holders of the Shares;
(ii) to give and receive communications and notices, to execute, acknowledge, deliver, record, and file all ancillary agreements, certificates, and documents that the Stockholder Representative deems necessary or appropriate in connection with respect to the consummation of the transactions contemplated by this Agreement Agreement;
(iii) to negotiate, agree to, enter into settlements and the Ancillary Documentscompromises of, agrees and demand participation and arbitration and comply with orders and awards of courts and arbitrators with respect to be bound by the provisions of this Agreement or other such agreements claims for Damages and the terms of such transactions. Stockholder Representative hereby accepts such appointment. Stockholder Representative may take any and all actions that it believes are reasonably necessary or appropriate otherwise;
(iv) to receive payments due under this Agreement and acknowledge receipt for such payments;
(v) to negotiate, agree to, enter into settlements and compromises of, the Ancillary DocumentsFinal Determination (including any actions pursuant to Section 1.8 hereof), including interpreting the Merger Consideration, and all matters for the holders of Shares with respect to the terms and provisions of this Exchange Agent Agreement and the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, pursuant Escrow Agreement;
(vi) to waive any breach or default under the Agreement or to waive any condition precedent to Closing under ARTICLE VI hereof;
(vii) to amend this Agreement, has the exclusive authority Agreement or any related document or instrument;
(viii) to act on his, her terminate this Agreement or its behalf any related document or instrument;
(ix) to receive service of process in connection with this Agreement, the Ancillary Documents and other transaction documents and related matters, including (i) authorization of payments to be made by any Stockholder or Stockholder Representative claims under this Agreement or any Ancillary Document, related document or instrument;
(iix) directing to perform the distribution of all payments obligations and amounts to any Stockholder, (iii) exercise the giving and receiving of notices to be given or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer rights under this Agreement and any related document or any Ancillary Documentinstrument, including the settlement of claims and disputes with respect Buyer and NewCo;
(xi) to any adjustments take all actions necessary or appropriate in the judgment of the Stockholder Representative to accomplish the Purchase Price pursuant foregoing; and
(xii) to Section 2.5receive, or take any actions and exercise such other poweraccept, rights and authority as set forth herein, (v) the right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Documentraise objections to, and related documents, (vi) negotiate the right to waive any condition or provision of this Agreement or any Ancillary Document and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified in or contemplated by this Agreement or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement shall be binding upon all Stockholders, and no Stockholder shall have any right to object, dissent, protest or otherwise contest the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all of the Stockholders. The Stockholder Representative may resign at any time upon 30 day’s advance written notice. Upon the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this AgreementFinal Determination.
(b) Stockholder Representative shall have no duties to the Stockholders or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any act done or omitted as Stockholder Representative unless its action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or inaction constitutes willful misconduct of the Stockholder Representativeor gross negligence. A decision, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholdersact, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations ofconsent, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal instruction of the Stockholder Representative or shall constitute a decision for all of the termination holders of this Agreement.
(c) Upon Shares and shall be final, binding, and conclusive upon each of such holders, and Buyer, NewCo and the ClosingSurviving Entity may rely upon any such decision, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a)act, which will be used for the purposes of paying directlyconsent, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal instruction of the Stockholder Representative Reserve Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate fundsbeing the decision, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilitiesact, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve Fund.
(d) Any action taken by Stockholder Representative pursuant to the authority granted in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents.
(e) Buyer shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by, and the actions ofconsent, or the failure to act by, Stockholder Representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out instruction of or related to the performance of, or failure to perform by, Stockholder Representative all holders of its obligations set forth in this Agreement, as applicableShares.
Appears in 1 contract
Appointment of Stockholder Representative. (a) Each By the execution and delivery of this Agreement, each Stockholder hereby irrevocably constitutes and appoints Shareholder the Stockholder Representative Services LLC as his, her or its representative (“Stockholder Representative”), as the true and lawful agent and attorney-in-fact, fact of each Stockholder with full power of substitution, with full power and authority substitution to act for in the name, place and stead of and on behalf of such each Stockholder for all purposes of this Agreement and the Ancillary Documents, and (i) with respect to the consummation of the transactions contemplated by this Agreement and and/or the Ancillary DocumentsAgreements, agrees to be bound by the provisions and (ii) under, with respect to, or in any matter resulting from, relating to, or arising out of this Agreement, the Ancillary Agreements, the transactions contemplated hereby or thereby or the performance of each of Stockholder’s obligations hereunder or thereunder, including the power:
(a) to act in the name, place and stead of and on behalf of each Stockholder with regard to matters pertaining to indemnification referred to in this Agreement and/or the Ancillary Agreements, including, without limitation, the power to compromise or other such agreements resolve any indemnity claim on behalf of each Stockholder;
(b) to defend the interests of each Stockholder under, with respect to, or in any matter resulting from, relating to, or arising out of this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby;
(c) to act in the name, place and stead of and on behalf of each Stockholder to send or receive notification under, with respect to, or in any matter resulting from, relating to, or arising out of this Agreement, the terms Ancillary Agreements or the transactions contemplated hereby or thereby;
(d) to act in the name, place and stead of such transactions. and on behalf of each Stockholder to exercise the rights and perform the obligations of each Stockholder under, with respect to, or in any matter resulting from, relating to, or arising out of this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby;
(e) to participate in the Closing and to execute and deliver all agreements, certificates, documents and instruments in the name, place and stead of and on behalf of each Stockholder that the Stockholder Representative hereby accepts such appointment. Stockholder Representative may take any and all actions that it believes are reasonably deems necessary or appropriate under this Agreement in connection with the consummation of the transactions contemplated hereby or thereby;
(f) to deliver to the Parent one or more certificates representing each Stockholder’s Shares, together with stock powers duly executed by each Stockholder; and to receive funds from and give receipts of funds to the Parent and the Ancillary DocumentsEscrow Agent, including interpreting all acceptance of the terms and provisions of this Agreement and purchase price from the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder RepresentativeParent in exchange for each Stockholder’s Shares, as adjusted pursuant to this Agreement;
(g) to pay costs and expenses incurred in connection with the preparation, has negotiation and execution of this Agreement, the exclusive authority Ancillary Agreements, this Agreement and all other related agreements, certificates, documents and instruments, including, without limitation, legal, accounting and investment banking fees, out of amounts payable to each Stockholder under this Agreement; provided, that each Stockholder’s portion of such costs and expenses shall be determined on a pro rata basis based upon such Stockholder’s ownership of the Shares immediately prior to the Effective Time;
(h) to do or refrain from doing any further act or deed in the name, place and stead of and on behalf of each Stockholder that the Stockholder Representative deems necessary or appropriate in its sole discretion relating to or in connection with the subject matter of this Agreement, the Ancillary Agreements and/or the transactions contemplated, hereby or thereby as fully and completely as such Stockholder could do if personally present;
(i) to receive service of process or notice of claims in connection with any claims under this Agreement and/or the Ancillary Agreements. Each Stockholder hereby ratifies and confirms as his, her or its behalf own act, all that the Stockholder Representative shall do or cause to be done pursuant to the provisions hereof. Any service, ratification of any claim, request or act delivered to a Stockholder under, with respect to, or in connection with any matter resulting from, relating to, or arising out of this Agreement, the Ancillary Documents and Agreements, all other transaction related agreements, certificates, documents and related matters, including (i) authorization of payments to be made by any Stockholder or Stockholder Representative under this Agreement or any Ancillary Document, (ii) directing the distribution of all payments and amounts to any Stockholder, (iii) the giving and receiving of notices to be given or received by any Stockholder, (iv) the right to resolve, settle, defendinstruments, or dispute any claims made by Buyer under this Agreement the transactions contemplated hereby or any Ancillary Documentthereby will be deemed as having been duly served, including with respect to any adjustments to the Purchase Price pursuant to Section 2.5ratified, requested, or take any actions and exercise acted to such other powerStockholder if served, rights and authority as set forth hereinratified, (v) the right requested, or acted to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Document, and related documents, (vi) the right to waive any condition or provision of this Agreement or any Ancillary Document and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified in or contemplated by this Agreement or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement shall be binding upon all Stockholders, and no Stockholder shall have any right to object, dissent, protest or otherwise contest the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all of the Stockholders. The Stockholder Representative may resign at any time upon 30 day’s advance written notice. Upon the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this Agreement.
(b) Stockholder Representative shall have no duties to the Stockholders or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders, any such Representative Losses may be recovered by the Stockholder Representative from (i) the funds in the Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; provided, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(c) Upon the Closing, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Stockholder Representative Reserve Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve Fund.
(d) Any action taken by Stockholder Representative pursuant to the authority granted in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents.
(e) Buyer shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by, and the actions of, or the failure to act by, Stockholder Representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out of or related to the performance of, or failure to perform by, Stockholder Representative of its obligations set forth in this Agreement, as applicable.
Appears in 1 contract
Samples: Merger Agreement (C-Cor Inc)
Appointment of Stockholder Representative. (a) Each Stockholder The Stockholders do hereby irrevocably appoints Shareholder Representative Services LLC as his, her or its representative constitute and appoint Xxxxxx Xxxxxx (“and each successor appointed in accordance with Section 9.05(c) of this Agreement) (the "Stockholder Representative”), as ") the agent and true and lawful agent and attorney-in-factfact of them and each of them, in the name, place and stead of them and each of them, in connection with full power of substitution, with full power and authority to act for and on behalf of such Stockholder for all purposes of this Agreement and the Ancillary Documents, and with respect to facilitate the consummation of the transactions contemplated by this Agreement Agreement, and in connection with the Ancillary Documents, agrees performance of the various actions required or permitted to be bound performed on behalf of the Stockholders under this Agreement, which shall include the following purposes and with the following powers, all of which shall be exercised by the provisions of this Agreement or other such agreements and the terms of such transactions. Stockholder Representative to the same extent as if the Stockholders themselves were acting, and Xxxxxx Xxxxxx (and any successor) hereby accepts such appointment. Stockholder Representative may take any appointment and all actions that it believes are reasonably necessary agrees to use his or appropriate under this Agreement and the Ancillary Documents, including interpreting all of her best efforts to exercise such powers in accordance with the terms hereof:
(i) to agree to, and provisions of this Agreement to execute and deliver, such agreements, documents and instruments as the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, in his or her sole discretion, may deem necessary and advisable, and act for and on behalf of each of the Stockholders, in each case solely in connection with the matters set forth in this Agreement;
(ii) to receive and hold in trust, in a segregated account or accounts established for the benefit of the Stockholders, any sums of money paid or to be paid by the Purchaser pursuant to this Agreement, has including, without limitation, the exclusive authority Purchase Price, distributions from the escrow pursuant to act the Escrow Agreement and any other amounts payable to the Stockholder Representative under this Agreement on hisbehalf of the Stockholders (the "Payments"), her and to promptly apply such Payments for the payment of any sums due or its to become due to the Stockholders from the Purchaser by virtue of the terms of this Agreement in accordance with the respective interests of the Stockholders;
(iii) to exercise any and all rights granted to the Stockholder Representative on behalf in connection with of the Stockholders under the terms of this Agreement, the Ancillary Documents Agreements and any and all collateral documents delivered by the Purchaser or any other transaction documents Person, firm or corporation during the term of this Agreement;
(iv) either in his or her own name as Stockholder Representative or as attorney-in-fact for the Stockholders, or in any one or more capacities, to enforce and related mattersprotect the rights and interests of the Stockholders and/or the Stockholder Representative arising out of or under or in any manner relating to this Agreement, including, in connection therewith, to (A) assert any claim or institute any action or proceeding, including without limitation, suits against the Purchaser arising out of this Agreement; (iB) authorization investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Purchaser or any other Person, firm or corporation or by any federal, state or local governmental or regulatory authority, against the Stockholder Representative and/or any of payments the Stockholders in any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as he or she, in his or her sole discretion, may deem advisable or necessary; (D) file and prosecute appeals from any decision, judgment or award rendered in any such claims, action, proceeding or investigation; and (E) with the prior written consent of the Stockholders (which consent shall not be unreasonably withheld), compromise or settle on such terms as he or she shall determine to be made by appropriate, and give receipts, releases and discharges with respect to, and direct the Purchaser to make payments with respect to, any Stockholder such claim, action, proceeding or investigation; it being understood that the Stockholder Representative under shall not have any obligation to take any such actions described in the foregoing clauses (A) through (E) and no such failure to act on the part of the Stockholder Representative shall be deemed a waiver of any such right or interest by the Stockholder Representative or the Stockholders to take any such actions unless such waiver is in writing signed by the waiving party;
(v) to modify, extend, change or waive any of the terms, provisions and conditions of this Agreement, the Escrow Agreement or any other Ancillary DocumentAgreement, (ii) directing and any other agreements hereafter executed or instruments hereafter delivered in connection therewith; and, in connection therewith, to execute, deliver and file any and all documents or instruments on behalf of the distribution of all payments and amounts Stockholders to give effect to any Stockholdersuch modification, (iii) the giving and receiving of notices to be given extension, change or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer under this Agreement or any Ancillary Document, including with respect to any adjustments to the Purchase Price pursuant to Section 2.5, or take any actions and exercise such other power, rights and authority as set forth herein, (v) the right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Document, and related documents, waiver; and
(vi) the right to waive make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any condition or provision of this Agreement or any Ancillary Document and all things and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified action that he or she in his or her sole and absolute discretion, may consider necessary or proper, in each case solely in connection with or to carry out the transactions contemplated by this Agreement Agreement; provided, however, that with respect to this Section 9.05(a), he or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement she shall be binding upon all Stockholdersnot have the right to, and no Stockholder shall have any right to objectagrees that he or she will not, dissent, protest act as or otherwise contest hold himself or herself out as the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all representative of the Stockholders. The Stockholder Representative may resign at Stockholders for any time upon 30 day’s advance written notice. Upon purpose other than the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume purposes specified in the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this Agreement.
(b) Stockholder Representative The grant of authority provided for in Section 9.05(a): (i) is coupled with an interest and shall have no duties to be irrevocable and survive the Stockholders death, incompetency, bankruptcy or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to liquidation of any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions Stockholder; (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmentii) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders, any such Representative Losses may be recovered exercised by the Stockholder Representative from (i) the funds in the either by signing separately as attorney-in-fact for each Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; providedor, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf after listing all of the Stockholders or otherwise. Notwithstanding anything in this Agreement to executing an instrument, by the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal signature of the Stockholder Representative acting as attorney-in-fact for all of them; and (iii) shall survive the delivery of an assignment by a Stockholder of the whole or the termination any fraction of this Agreementhis interest hereunder.
(c) Upon the Closing, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will shall have the right to resign by notice in writing (the "Resignation Notice"), mailed by certified mail, return receipt requested, to each of the Purchaser and the Stockholders as follows:
(i) If a Stockholder Representative shall not be liable have arranged for a successor or substitute representative or, if any such successor or substitute representative shall not have been consented to by the Stockholders, and such Stockholder Representative shall resign or if such Stockholder Representative for any loss of principal of the Stockholder Representative Reserve Fund other than reason shall fail or cease to act as a result of its gross negligence such hereunder or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of the commencement of any proceeding by or against such Stockholder Representative under any applicable bankruptcy. As soon as practicable following , reorganization, liquidation, insolvency or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, custodian, trustee or other similar official is sought to be appointed for such Stockholder Representative, the completion Stockholders shall, by majority vote of the Stockholder Representative’s responsibilitiesStockholders, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund designate and appoint a new representative or representatives to act hereunder pursuant to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time provisions of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve FundSection 9.05(a) hereof.
(dii) Any action taken by A resignation of a Stockholder Representative pursuant to and appointment of a successor representative shall become effective only upon the authority granted successor representative's acceptance of appointment as provided in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents9.05(c).
(eiii) Buyer If a new representative shall be entitled act as successor or substitute representative hereunder, the new representative shall agree in writing to rely, and shall be fully protected in relying, upon any statements furnished to it by, and accept the actions of, or the failure to act by, Stockholder Representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out terms of or related to the performance of, or failure to perform by, Stockholder Representative of its obligations set forth in this Agreement, as subject, if applicable., to any additional terms to, or different terms from, this Agreement consented to under Section 9.05
Appears in 1 contract
Appointment of Stockholder Representative. (a) Each Stockholder The Stockholders do hereby irrevocably appoints Shareholder Representative Services LLC as his, her or its representative constitute and appoint Xxxxxx Xxxxxx (“and each successor appointed in accordance with Section 9.05(c) of this Agreement) (the "Stockholder Representative”), as ") the agent and true and lawful agent and attorney-in-factfact of them and each of them, in the name, place and stead of them and each of them, in connection with full power of substitution, with full power and authority to act for and on behalf of such Stockholder for all purposes of this Agreement and the Ancillary Documents, and with respect to facilitate the consummation of the transactions contemplated by this Agreement Agreement, and in connection with the Ancillary Documents, agrees performance of the various actions required or permitted to be bound performed on behalf of the Stockholders under this Agreement, which shall include the following purposes and with the following powers, all of which shall be exercised by the provisions of this Agreement or other such agreements and the terms of such transactions. Stockholder Representative to the same extent as if the Stockholders themselves were acting, and Xxxxxx Xxxxxx (and any successor) hereby accepts such appointment. Stockholder Representative may take any appointment and all actions that it believes are reasonably necessary agrees to use his or appropriate under this Agreement and the Ancillary Documents, including interpreting all of her best efforts to exercise such powers in accordance with the terms hereof: (i) to agree to, and provisions of this Agreement to execute and deliver, such agreements, documents and instruments as the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, in his or her sole discretion, may deem necessary and advisable, and act for and on behalf of each of the Stockholders, in each case solely in connection with the matters set forth in this Agreement; (ii) to receive and hold in trust, in a segregated account or accounts established for the benefit of the Stockholders, any sums of money paid or to be paid by the Purchaser pursuant to this Agreement, has including, without limitation, the exclusive authority Purchase Price, distributions from the escrow pursuant to act the Escrow Agreement and any other amounts payable to the Stockholder Representative under this Agreement on hisbehalf of the Stockholders (the "Payments"), her and to promptly apply such Payments for the payment of any sums due or its to become due to the Stockholders from the Purchaser by virtue of the terms of this Agreement in accordance with the respective interests of the Stockholders; (iii) to exercise any and all rights granted to the Stockholder Representative on behalf in connection with of the Stockholders under the terms of this Agreement, the Ancillary Documents Agreements and any and all collateral documents delivered by the Purchaser or any other transaction documents Person, firm or corporation during the term of this Agreement; (iv) either in his or her own name as Stockholder Representative or as attorney-in-fact for the Stockholders, or in any one or more capacities, to enforce and related mattersprotect the rights and interests of the Stockholders and/or the Stockholder Representative arising out of or under or in any manner relating to this Agreement, including, in connection therewith, to (A) assert any claim or institute any action or proceeding, including without limitation, suits against the Purchaser arising out of this Agreement; (iB) authorization investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Purchaser or any other Person, firm or corporation or by any federal, state or local governmental or regulatory authority, against the Stockholder Representative and/or any of payments the Stockholders in any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as he or she, in his or her sole discretion, may deem advisable or necessary; (D) file and prosecute appeals from any decision, judgment or award rendered in any such claims, action, proceeding or investigation; and (E) with the prior written consent of the Stockholders (which consent shall not be unreasonably withheld), compromise or settle on such terms as he or she shall determine to be made by appropriate, and give receipts, releases and discharges with respect to, and direct the Purchaser to make payments with respect to, any Stockholder such claim, action, proceeding or investigation; it being understood that the Stockholder Representative under shall not have any obligation to take any such actions described in the foregoing clauses (A) through (E) and no such failure to act on the part of the Stockholder Representative shall be deemed a waiver of any such right or interest by the Stockholder Representative or the Stockholders to take any such actions unless such waiver is in writing signed by the waiving party; (v) to modify, extend, change or waive any of the terms, provisions and conditions of this Agreement, the Escrow Agreement or any other Ancillary DocumentAgreement, (ii) directing and any other agreements hereafter executed or instruments hereafter delivered in connection therewith; and, in connection therewith, to execute, deliver and file any and all documents or instruments on behalf of the distribution of all payments and amounts Stockholders to give effect to any Stockholdersuch modification, (iii) the giving extension, change or waiver; and receiving of notices to be given or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer under this Agreement or any Ancillary Document, including with respect to any adjustments to the Purchase Price pursuant to Section 2.5, or take any actions and exercise such other power, rights and authority as set forth herein, (v) the right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Document, and related documents, (vi) the right to waive make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any condition or provision of this Agreement or any Ancillary Document and all things and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified action that he or she in his or her sole and absolute discretion, may consider necessary or proper, in each case solely in connection with or to carry out the transactions contemplated by this Agreement Agreement; provided, however, that with respect to this Section 9.05(a), he or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement she shall be binding upon all Stockholdersnot have the right to, and no Stockholder shall have any right to objectagrees that he or she will not, dissent, protest act as or otherwise contest hold himself or herself out as the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all representative of the Stockholders. The Stockholder Representative may resign at Stockholders for any time upon 30 day’s advance written notice. Upon purpose other than the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume purposes specified in the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this Agreement.
(b) Stockholder Representative The grant of authority provided for in Section 9.05(a): (i) is coupled with an interest and shall have no duties to be irrevocable and survive the Stockholders death, incompetency, bankruptcy or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to liquidation of any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions Stockholder; (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmentii) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders, any such Representative Losses may be recovered exercised by the Stockholder Representative from (i) the funds in the either by signing separately as attorney-in-fact for each Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; providedor, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf after listing all of the Stockholders or otherwise. Notwithstanding anything in this Agreement to executing an instrument, by the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal signature of the Stockholder Representative acting as attorney-in-fact for all of them; and (iii) shall survive the delivery of an assignment by a Stockholder of the whole or the termination any fraction of this Agreementhis interest hereunder.
(c) Upon the Closing, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will shall have the right to resign by notice in writing (the "Resignation Notice"), mailed by certified mail, return receipt requested, to each of the Purchaser and the Stockholders as follows:
(i) If a Stockholder Representative shall not have arranged for a successor or substitute representative or, if any such successor or substitute representative shall not have been consented to by the Stockholders, and such Stockholder Representative shall resign or if such Stockholder Representative for any reason shall fail or cease to act as such hereunder or in the event of the commencement of any proceeding by or against such Stockholder Representative under any applicable bankruptcy, reorganization, liquidation, insolvency or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, custodian, trustee or other similar official is sought to be appointed for such Stockholder Representative, the Stockholders shall, by majority vote of the Stockholders, designate and appoint a new representative or representatives to act hereunder pursuant to the provisions of Section 9.05(a) hereof.
(ii) A resignation of a Stockholder Representative and appointment of a successor representative shall become effective only upon the successor representative's acceptance of appointment as provided in this Section 9.05(c).
(iii) If a new representative shall act as successor or substitute representative hereunder, the new representative shall agree in writing to accept the terms of this Agreement, subject, if applicable, to any additional terms to, or different terms from, this Agreement consented to under Section 9.05
(i) and promptly thereafter shall receive all monies, instruments, collateral security and other property and records held by his or her predecessors hereunder. No substitute or successor representative shall be liable for or obligated to examine the accounts, records or actions of any loss predecessor representative.
(iv) Each substitute or successor representative acting hereunder shall be vested with all of principal the rights, powers, indemnities and immunities of the Stockholder Representative Reserve Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The parties agree that the Stockholder Representative is not initially acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve Fund.
(d) Any action taken by Stockholder Representative pursuant to the authority granted in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents.
(e) Buyer shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it byhereunder, and the actions of, Stockholders agree to do each and every act and thing necessary and appropriate to vest the same in each such substitute or the failure to act by, Stockholder Representativesuccessor representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out of or related to the performance of, or failure to perform by, Stockholder Representative of its obligations set forth in this Agreement, as applicable.ARTICLE X
Appears in 1 contract
Appointment of Stockholder Representative. (a) Each Stockholder The Stockholders do hereby irrevocably appoints Shareholder Representative Services LLC as his, her or its representative constitute and appoint Xxxxxx Xxxxxx (“and each successor appointed in accordance with Section 9.05(c) of this Agreement) (the "Stockholder Representative”), as ") the agent and true and lawful agent and attorney-in-factfact of them and each of them, in the name, place and stead of them and each of them, in connection with full power of substitution, with full power and authority to act for and on behalf of such Stockholder for all purposes of this Agreement and the Ancillary Documents, and with respect to facilitate the consummation of the transactions contemplated by this Agreement Agreement, and in connection with the Ancillary Documents, agrees performance of the various actions required or permitted to be bound performed on behalf of the Stockholders under this Agreement, which shall include the following purposes and with the following powers, all of which shall be exercised by the provisions of this Agreement or other such agreements and the terms of such transactions. Stockholder Representative to the same extent as if the Stockholders themselves were acting, and Xxxxxx Xxxxxx (and any successor) hereby accepts such appointment. Stockholder Representative may take any appointment and all actions that it believes are reasonably necessary agrees to use his or appropriate under this Agreement and the Ancillary Documents, including interpreting all of her best efforts to exercise such powers in accordance with the terms hereof:
(i) to agree to, and provisions of this Agreement to execute and deliver, such agreements, documents and instruments as the Ancillary Documents. Each Stockholder acknowledges and agrees that Stockholder Representative, in his or her sole discretion, may deem necessary and advisable, and act for and on behalf of each of the Stockholders, in each case solely in connection with the matters set forth in this Agreement;
(ii) to receive and hold in trust, in a segregated account or accounts established for the benefit of the Stockholders, any sums of money paid or to be paid by the Purchaser pursuant to this Agreement, has including, without limitation, the exclusive authority Purchase Price, distributions from the escrow pursuant to act the Escrow Agreement and any other amounts payable to the Stockholder Representative under this Agreement on hisbehalf of the Stockholders (the "Payments"), her and to promptly apply such Payments for the payment of any sums due or its to become due to the Stockholders from the Purchaser by virtue of the terms of this Agreement in accordance with the respective interests of the Stockholders;
(iii) to exercise any and all rights granted to the Stockholder Representative on behalf in connection with of the Stockholders under the terms of this Agreement, the Ancillary Documents Agreements and any and all collateral documents delivered by the Purchaser or any other transaction documents Person, firm or corporation during the term of this Agreement;
(iv) either in his or her own name as Stockholder Representative or as attorney-in-fact for the Stockholders, or in any one or more capacities, to enforce and related mattersprotect the rights and interests of the Stockholders and/or the Stockholder Representative arising out of or under or in any manner relating to this Agreement, including, in connection therewith, to (A) assert any claim or institute any action or proceeding, including without limitation, suits against the Purchaser arising out of this Agreement; (iB) authorization investigate, defend, contest or litigate any claim, action, proceeding or investigation initiated by the Purchaser or any other Person, firm or corporation or by any federal, state or local governmental or regulatory authority, against the Stockholder Representative and/or any of payments the Stockholders in any such claim, action, proceeding or investigation; (C) file any proofs of debt, claims and petitions as he or she, in his or her sole discretion, may deem advisable or necessary; (D) file and prosecute appeals from any decision, judgment or award rendered in any such claims, action, proceeding or investigation; and (E) with the prior written consent of the Stockholders (which consent shall not be unreasonably withheld), compromise or settle on such terms as he or she shall determine to be made by appropriate, and give receipts, releases and discharges with respect to, and direct the Purchaser to make payments with respect to, any Stockholder such claim, action, proceeding or investigation; it being understood that the Stockholder Representative under shall not have any obligation to take any such actions described in the foregoing clauses (A) through (E) and no such failure to act on the part of the Stockholder Representative shall be deemed a waiver of any such right or interest by the Stockholder Representative or the Stockholders to take any such actions unless such waiver is in writing signed by the waiving party;
(v) to modify, extend, change or waive any of the terms, provisions and conditions of this Agreement, the Escrow Agreement or any other Ancillary DocumentAgreement, (ii) directing and any other agreements hereafter executed or instruments hereafter delivered in connection therewith; and, in connection therewith, to execute, deliver and file any and all documents or instruments on behalf of the distribution of all payments and amounts Stockholders to give effect to any Stockholdersuch modification, (iii) the giving and receiving of notices to be given extension, change or received by any Stockholder, (iv) the right to resolve, settle, defend, or dispute any claims made by Buyer under this Agreement or any Ancillary Document, including with respect to any adjustments to the Purchase Price pursuant to Section 2.5, or take any actions and exercise such other power, rights and authority as set forth herein, (v) the right to retain legal counsel and to engage accountants with respect to matters regarding this Agreement, any Ancillary Document, and related documents, waiver; and
(vi) the right to waive make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any condition or provision of this Agreement or any Ancillary Document and all things and to take any other action under this Agreement or any Ancillary Document, including amending this Agreement or any Ancillary Document in any respect, prior to or after the Closing on behalf of such Stockholder, and (vii) taking any and all other actions specified action that he or she in his or her sole and absolute discretion, may consider necessary or proper, in each case solely in connection with or to carry out the transactions contemplated by this Agreement Agreement; provided, however, that with respect to this Section 9.05(a), he or any Ancillary Document. All decisions and actions by Stockholder Representative permitted by this Agreement she shall be binding upon all Stockholdersnot have the right to, and no Stockholder shall have any right to objectagrees that he or she will not, dissent, protest act as or otherwise contest hold himself or herself out as the same and all Stockholders agree to be severally and not jointly (in accordance with their Pro Rata Shares) liable therefor. Buyer shall be entitled to deal with and rely conclusively on Stockholder Representative as provided herein as if, and with the same effect as if, Stockholder Representative constituted all representative of the Stockholders. The Stockholder Representative may resign at Stockholders for any time upon 30 day’s advance written notice. Upon purpose other than the death or resignation of Stockholder Representative appointed hereby, Stockholders shall appoint a replacement Stockholder Representative who shall possess and assume purposes specified in the rights, powers, duties and obligations of Stockholder Representative with the same effect as though such substitute representative had originally been Stockholder Representative under this Agreement.
(b) Stockholder Representative The grant of authority provided for in Section 9.05(a): (i) is coupled with an interest and shall have no duties to be irrevocable and survive the Stockholders death, incompetency, bankruptcy or liability to the Stockholders, other than as expressly set forth in this Agreement, with respect to liquidation of any action taken, omission, decision made or instruction given by Stockholder Representative in connection with this Agreement or any Ancillary Document while acting in good faith and without gross negligence or willful misconduct. The Stockholder Representative shall not be liable for any action or omission pursuant to the advice of counsel. The Stockholders will indemnify, defend and hold harmless the Stockholder Representative from and against any and all Liabilities, forfeitures, and actions Stockholder; (including the fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipmentii) (collectively, “Representative Losses”) arising out of or in connection with the Stockholder Representative’s execution and performance of this Agreement and any Ancillary Documents, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been directly caused by the gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Stockholders the amount of such indemnified Representative Loss to the extent attributable to such gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Stockholders, any such Representative Losses may be recovered exercised by the Stockholder Representative from (i) the funds in the either by signing separately as attorney-in-fact for each Stockholder Representative Reserve Fund and (ii) any other funds that become payable to the Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Stockholders; providedor, that while this Section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf after listing all of the Stockholders or otherwise. Notwithstanding anything in this Agreement to executing an instrument, by the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this Section. The foregoing indemnities will survive the Closing, the resignation or removal signature of the Stockholder Representative acting as attorney-in-fact for all of them; and (iii) shall survive the delivery of an assignment by a Stockholder of the whole or the termination any fraction of this Agreementhis interest hereunder.
(c) Upon the Closing, $350,000 (the “Stockholder Representative Reserve Fund”) will be wired to the Stockholder Representative pursuant to Section 2.4(a), which will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and the agreements ancillary hereto. The Stockholders will not receive any interest or earnings on the Stockholder Representative Reserve Fund and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal shall have the right to resign by notice in writing (the "Resignation Notice"), mailed by certified mail, return receipt requested, to each of the Stockholder Representative Reserve Fund other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes Purchaser and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representative’s responsibilities, the Stockholder Representative will deliver any remaining balance of the Stockholder Representative Reserve Fund to the Stockholders. For tax purposes, the Stockholder Representative Reserve Fund will be treated as having been received and voluntarily set aside by the Stockholders at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Reserve Fund.
(d) Any action taken by Stockholder Representative pursuant to the authority granted in this Section 11.16 shall be effective and absolutely binding as the action of the Stockholders and Stockholder Representative under this Agreement and the Ancillary Documents.
(e) Buyer shall be entitled to rely, and shall be fully protected in relying, upon any statements furnished to it by, and the actions of, or the failure to act by, Stockholder Representative. Buyer shall not be liable to any Stockholder for any losses sustained by any such Stockholder, arising out of or related to the performance of, or failure to perform by, Stockholder Representative of its obligations set forth in this Agreement, as applicable.follows:
Appears in 1 contract
